STATE OF NEW JERSEY v. JAMES MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES MOORE,

Defendant-Appellant.

________________________________________________________________

March 11, 2014

Submitted December 18, 2013 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0314.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant James Moore appeals from the order of the Law Division, Criminal Part, entered on April 26, 2012, denying his petition for post-conviction relief (PCR). We affirm.

On May 28, 2009, defendant entered into a plea agreement whereby in exchange for his plea of guilty to a single count of third-degree burglary of a motor vehicle, N.J.S.A. 2C:18-2, the State recommended drug court probation or five years in prison with two years of parole ineligibility. During the plea colloquy, defendant testified that he entered a vehicle he did not own, with the intent to take something from the car. He acknowledged entering the plea freely, voluntarily, and without coercion.

On June 15, 2009, defendant was sentenced to five years of probation in drug court, conditioned upon completion of a long-term intensive inpatient treatment program. Defendant did not complete the inpatient program and later pled guilty to violating probation. On March 25, 2011, defendant was resentenced to five years' imprisonment with two years of parole ineligibility. Defendant did not appeal the sentence.

Defendant filed a pro se PCR petition on August 26, 2011, alleging ineffective assistance of trial counsel for failing to raise an intoxication defense to negate his intent to commit burglary. After receiving a brief from assigned counsel and the State's opposition brief, Judge Sheila A. Venable heard oral argument. The judge denied the petition without conducting an evidentiary hearing, and explained the reasons for her decision in an oral opinion on April 26, 2012.

The present appeal followed. Defendant raises the following argument:

THE PCR COURT ERRED IN DENYING [DEFENDANT'S] REQUEST FOR POST-CONVICTION RELIEF AND AN EVIDENTIARY HEARING BECAUSE PRIMA FACIE EVIDENCE ESTABLISHED VOLUNTARY INTOXICATION AS AN AFFIRMATIVE DEFENSE AND THE FAILURE OF TRIAL COUNSEL TO RAISE THIS ISSUE RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL.

We have considered defendant's argument in light of the applicable legal precedents and conclude it lacks merit.

For a defendant to be entitled to relief because of a claim of ineffective assistance of counsel, he must satisfy the Strickland/Fritz1 test by establishing that (1) counsel's performance was deficient and (2) a reasonable probability exists that but for counsel's errors, the result of the proceeding would have been different. A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); see also State v. Goodwin, 173 N.J. 583, 596 (2002). However, if "the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . then an evidentiary hearing need not be granted." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013).

Defendant contends that his level of intoxication rendered him incapable of forming the intent to commit the crime of burglary. In addition to his factual basis, defendant's statement recorded in the presentence report included his admission he purposefully intended to enter the vehicle to take something. In her oral opinion, Judge Venable found that defendant's statements demonstrated that he intentionally "went into the vehicle, that he was looking to take something, wanted to get out of the rain and knew that the vehicle did not belong to him." Thus, the judge found defendant had the requisite mental state for burglary, and trial counsel was not deficient by failing to introduce the defense of voluntary intoxication. The judge concluded defendant failed to satisfy the Strickland factors.

Voluntary intoxication is not a defense to a criminal charge unless it negates an element of the offense. N.J.S.A.2C:2-8(a). Burglary requires a purposeful intent to enter a structure and commit an offense therein. N.J.S.A.2C:18-2. In this matter, although defendant may have been intoxicated when he entered the vehicle, we reject defendant's contention that potential eyewitness testimony verifying how much he drank, or possible expert testimony evidencing his "prostration of faculties," which incidentally was not presented, would have outweighed his admissions, thereby successfully supporting the intoxication defense.

We conclude from our review of the record that Judge Venable correctly found that defendant failed to make a prima facie showing of ineffectiveness of trial counsel as required by the Strickland/Fritztest.

1 See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) (adopting the standard for claims of ineffective assistance of counsel); State v. Fritz, 105 N.J. 42, 67 (1987) (adopting the Strickland standard in New Jersey).