STATE OF NEW JERSEY v. RAHEEM FORRESTER

NOT FOR PUBLICATION WITHOUT THE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.

RAHEEM FORRESTER,

Defendant-Appellant.

________________________________________

May 13, 2015

Submitted April 21, 2015 Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-04-0745.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Raheem Forrester appeals from an order entered by the Law Division on February 21, 2014, denying his petition for post-conviction relief ("PCR"). We affirm.

A Hudson County grand jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 (count three); second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b(1) (count four); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count five); first-degree armed robbery, N.J.S.A. 2C:15-1 (count six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); and possession of a handgun by a person previously convicted of an offense involving the possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:39-7b (count nine).

On March 9, 2009, defendant pled guilty to count one, which was amended to charge first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and to count four, charging second-degree aggravated assault, serious bodily injury. The State agreed to dismiss the remaining counts and to recommend a sentence of twenty-two years of incarceration, with an 85% period of parole ineligibility, pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.

Defendant provided a factual basis for his plea. He stated that he was in Jersey City on November 6, 2007, in the area of Bramhall and Bergen Avenues. Defendant admitted that he was in possession of a handgun. Seven or eight persons approached him, but they were not armed. Defendant said he became alarmed and "shot into the crowd." He said he did not shoot at anyone in particular. Defendant shot the gun three times. At least two people were hit with bullets. One person died. The other person sustained an injury to his leg, and that individual was taken to a hospital in a serious condition but eventually survived.

Defendant's attorney stipulated that this individual sustained a serious bodily injury, which had been inflicted with a deadly weapon. Defendant agreed that he committed an act that was so reckless that it caused the death of an individual under circumstances which manifested extreme indifference to the value of human life. He agreed that his actions involved a lack of concern for whether one lived or died.

Thereafter, defendant sought to withdraw his plea. On May 14, 2010, the court denied the application. Defendant was sentenced on June 3, 2010. On count one, the court sentenced defendant to twenty years of incarceration, with a period of parole ineligibility as prescribed by NERA, and a five-year term of parole supervision. On count four, the court sentenced defendant to ten years of incarceration, subject to NERA, with a three-year term of parole supervision. The court ordered that the sentence on count four be served concurrent to the sentence on count one.

Defendant appealed, arguing that the court erred by denying his motion to withdraw the plea and by imposing an excessive sentence. The appeal was heard on our excessive sentence calendar. R. 2:9-11. We issued an order rejecting defendant's arguments and affirmed. State v. Forrester, No. A-0923-10 (App. Div. August 2, 2011).

In August 2013, defendant filed a pro se petition for PCR, alleging ineffective assistance of counsel. The court appointed counsel to represent defendant, and counsel filed a brief in support of the petition.

On February 10, 2014, the PCR court heard oral argument on the petition, and thereafter, filed a written opinion in which it concluded that defendant had not been denied the effective assistance of counsel. The court determined that an evidentiary hearing was not required on the petition. The court entered an order dated February 21, 2014 denying the petition.

Defendant appeals and raises the following arguments

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A [PRIMA FACIE] SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER [RULE] 3:22 POST-CONVICTION RELIEF STANDARDS.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We are convinced from our review of the record that defendant's arguments are entirely without merit. We affirm the denial of PCR substantially for the reasons stated by the PCR court in its written opinion. We add the following brief comments.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must establish that his attorney's performance was deficient, and counsel's deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The Supreme Court of the United States has determined that a defendant is entitled to the effective assistance of counsel regarding a plea. Lafler v. Cooper, 566 U.S. , , ____, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012). Therefore, a defendant claiming ineffective assistance of counsel concerning a plea must establish the "'reasonable probability'" that the result would have been different had his attorney provided proper advice. Id. at ____, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 674).

Furthermore, our Supreme Court has established criteria for vacating a guilty plea when a defendant claims he was denied the effective assistance of counsel

[T]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (second alteration in original) (citation and internal quotation marks omitted).]

Here, defendant contends that his attorney was deficient because he failed to conduct an adequate pre-trial investigation of the case. Defendant notes that Frank O'Neill (O'Neill), one of the individuals shot in the incident, provided a statement indicating that defendant fired a gun. Another witness corroborated O'Neill's statement. This witness said defendant and co-defendant Tywan Black robbed him and then ran across the street. The witness stated that he saw defendant fire four shots in the direction of Antoine Mack ("Mack") and O'Neill. Mack was shot and killed. O'Neill was shot and survived.

Defendant claims his attorney should have sent an investigator into the neighborhood to question residents who may have witnessed the incident. Defendant claims that, had such an investigation been undertaken, it would have led to the discovery of exculpatory evidence. However, the PCR court correctly determined that counsel's failure to conduct such an investigation did not constitute the ineffective assistance of counsel.

The court observed that defendant's claim was based on speculation as to the evidence that would have been found if counsel had conducted a further investigation. The court said there was an overwhelming amount of evidence indicating that defendant fired the shot that killed Mack. The court pointed out that the State's investigators had canvassed the area where the shootings took place and none of the statements elicited were in any way exculpatory.

We are convinced the record supports the court's determination. "'[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Here, defendant failed to establish, with appropriate factual support, the facts that would have been revealed if his attorney had sent an investigator to question residents in the neighborhood about the shootings.

Defendant also claims that his attorney was deficient because he failed to challenge O'Neill's out-of-court identification of him as the shooter. Defendant says that it is unknown whether his photo was provided to O'Neill in a manner contrary to the Attorney General's guidelines for such identifications. The PCR court correctly determined, however, that counsel has no basis upon which to challenge O'Neill's identification.

The court pointed out that O'Neill had known defendant for about twenty years, and O'Neill had a series of physical and verbal altercations with defendant in the months before the shootings. The court determined that O'Neill's familiarity with defendant "eliminates any realistic possibility of impermissible suggestiveness or misidentification." We agree.

In addition, defendant argues that the PCR court should have conducted an evidentiary hearing on the petition. A hearing on a PCR petition is warranted when a defendant presents a prima facie case for relief, the existing record is not sufficient to resolve the claims, and the court decides that a hearing is required. R. 3:22-10(b); see also Porter, supra, 216 N.J. at 355. In this case, the existing record was sufficient to resolve defendant's claims, and defendant failed to present a prima facie case for relief. Thus, the court correctly determined that an evidentiary hearing was not required.

Affirmed.