STATE OF NEW JERSEY v. HANSLEE NANCE

NOT FOR PUBLICATION WITHOUT THE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.

HANSLEE NANCE, a/k/a

LEE LEVANCE,

Defendant-Appellant.

___________________________________

April 20, 2015

Submitted November 6, 2014 Decided

Before Judges Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-08-1061.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

On June 23, 2004, defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). On September 17, 2004, he was sentenced to a fifty-five year term of imprisonment, with an eighty-five percent period of parole ineligibility. Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Nance, No. A-1392-04T4 (App. Div. January 25, 2007). The Supreme Court denied his petition for certification. State v. Nance, 190 N.J. 256 (2007). The facts underlying defendant's conviction are set forth in our opinion and need not be repeated here.

On January 4, 2008, defendant filed a PCR petition, in which he claimed he had been denied a fair trial because of ineffective assistance of trial counsel, prosecutorial misconduct, and errors made by the trial court. He also contended there was insufficient evidence to support the conviction. Defendant's appointed counsel filed a brief on his behalf on December 13, 2010. On March 28, 2012, the PCR court denied defendant's petition.1

Defendant presents the following issues for our consideration in his appeal.

POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL WAS REMISS BY FAILING TO MAKE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS IT CONSISTED PRIMARILY OF HEARSAY.

POINT II RULE 3:22-4 DID NOT PRECLUDE THE TRIAL COURT FROM ADJUDICATING ON ITS SUBSTANTIVE MERITS POST CONVICTION RELIEF COUNSEL'S CONTENTION THAT TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HIS FAILURE TO MAKE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS THAT IT CONSISTED PRIMARILY OF HEARSAY.

POINT III THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE ON APPEAL THE ISSUE OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

We are not persuaded by any of these arguments and affirm.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test by establishing that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

As for the first and second points he raises, defendant contends trial counsel was ineffective for failing to file a motion to dismiss the indictment. He contends that, had a motion been filed, the indictment would have been dismissed on the grounds the testimony educed at the grand jury proceeding was predominately hearsay and that most of the prosecutor's questions were leading. Defendant also argues appellate counsel was ineffective for failing "to raise this issue, thereby potentially precluding [defendant] from raising it at the present time." We disagree.

It is settled law that "[a]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." State v. Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988). Thus, even the exclusive use of leading questions during a grand jury proceeding is an insufficient ground to dismiss an indictment. Id. at 585-86. Given the high improbability of prevailing on the merits, trial counsel's performance was not deficient because he did not file a motion to dismiss the indictment on these grounds. For the same reason, appellate counsel cannot be faulted for failing to concoct an argument premised upon the prosecutor using leading questions or drawing hearsay testimony from the one witness at the grand jury proceeding.

As for the third point, defendant alleges that appellant counsel was ineffective for failing to argue the prosecutor made prejudicial remarks during his summation. After examining the record, the context in which these remarks were made, and the curative instruction the trial court gave in connection with one of these remarks, we conclude that there is no reasonable probability that, but for appellate counsel's alleged error, the result of the proceeding would have been different.

Because defendant failed to make a prima facie showing of either the ineffectiveness of trial or appellate counsel within the Strickland-Fritz test, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).

Affirmed.

1 An order entered on July 24, 2012 amended the March 28, 2012 order by correcting the indictment number in that order.