STATE OF NEW JERSEY v. FAYYAADH HARRIS

NOT FOR PUBLICATION WITHOUT THE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.

FAYYAADH HARRIS,

Defendant-Appellant.

____________________________________________________

June 15, 2015

Submitted June 2, 2015 Decided

Before Judges Fisher and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0383.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

In 2005, defendant was tried and convicted of a first-degree murder that occurred in Newark on January 4, 2003; defendant was seventeen-years old at the time. He was sentenced to a thirty-year prison sentence.

In his direct appeal, defendant argued that: the trial judge erroneously admitted his confession because the waiver of his right against self-incrimination was invalid and his will overborne during the interrogation; and the judge gave an erroneous response to the deliberating jury's question about whether defendant "put a hit out on the [victim]." We rejected these arguments and affirmed. State v. Harris, No. A-5007-04 (App. Div. May 4, 2007).

In December 2007, defendant filed a pro se post-conviction relief (PCR) petition that was amended in August 2008 by appointed counsel. Defendant argued that trial counsel was ineffective: in not requesting a different response to the deliberating jury's question; in failing to advise defendant of his right to testify at the pretrial Miranda1 hearing; in not seeking a Wade2 hearing to test an out-of-court identification; and in failing to seek an appropriate jury instruction regarding prior bad act evidence. The PCR judge, who also had presided over the trial, denied the petition for reasons set forth in a written opinion dated January 27, 2009.

Defendant appealed the denial of that PCR petition. We affirmed in part but remanded "solely for an evidentiary hearing on the advice provided to defendant by trial counsel regarding his right to testify at the Miranda hearing." State v. Harris, No. A-5825-08 (App. Div. July 18, 2011) (slip op. at 9). The Supreme Court denied defendant's petition for certification. 209 N.J. 98 (2012).

Another judge was assigned to the matter. He heard testimony regarding the issue posed in our remand on December 13, 2013, and January 10, 2014. On the latter date, the judge rendered an oral decision, finding defendant unworthy of belief when he testified his trial attorney failed to advise him of his right to testify at the Miranda hearing. An appropriate order was entered the same day.

Defendant appeals, arguing through counsel

THE PCR COURT ERRED IN DENYING [DEFENDANT]'S [PCR] PETITION . . . BASED ON AN INCORRECT FINDING THAT TRIAL COUNSEL WAS NOT DEFICIENT IN THAT SHE ADVISED [DEFENDANT] OF HIS RIGHT TO TESTIFY AT THE PRE-TRIAL MIRANDA HEARING AND WITHOUT HOLDING A MIRANDA HEARING TO DETERMINE WHETHER HE WAS PREJUDICED.

Defendant also filed a pro se supplemental brief, arguing

TRIAL COUNSEL WAS INEFFECTIVE FOR BOTH FAILING TO ADVISE THE DEFENDANT OF HIS RIGHT TO TESTIFY AT THE MIRANDA HEARING AND FOR NOT HAVING THE DEFENDANT EXERCISE THE RIGHT TO TESTIFY IN THE CHALLENGING OF THE ALLEGED ORAL CONFESSION'S ADMISSIBILITY.

In light of the standard of appellate review requiring our deference to a judge's findings of fact when supported by adequate, substantial and credible evidence, State v. Nash, 212 N.J. 518, 540 (2013) we find insufficient merit in defendant's arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).