STATE OF NEW JERSEY v. ANDRE BING-JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4306-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE BING-JACKSON,

Defendant-Appellant.

________________________________

December 15, 2015

Submitted November 12, 2015 Decided

Before Judges Koblitz and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0212.

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

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura M. Kotarba, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Andre Bing-Jackson appeals from an October 18, 2013 amended order, which denied his petition for post-conviction relief (PCR) without a plenary hearing. Defendant was convicted at trial of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second-degree robbery, N.J.S.A. 2C:15-1(a)(1). On January 27, 2006, he was sentenced to an aggregate term of twenty-five years in prison with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on direct appeal. State v. Bing-Jackson, No. A-5120-07 (App. Div. Mar. 17, 2010) (slip op. at 13), certif. denied, 208 N.J. 336 (2011).

On this appeal defendant raises the following issues

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 LEVEL.

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

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO RESPOND APPROPRIATELY TO THE PROSECUTOR'S OBJECTION DURING CROSS-EXAMINATION OF A CRUCIAL STATE'S WITNESS WHICH GRATUITOUSLY PROVIDED THE JURY WITH INACCURATE AND INHERENTLY INFLAMMATORY INFORMATION.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO MAKE A MOTION PRIOR TO TRIAL TO DISMISS THE INDICTMENT.

D. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HIS FAILURE TO THOROUGHLY DISCUSS WITH HIS CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, AS A RESULT OF WHICH THE DEFENDANT DID NOT TESTIFY IN HIS OWN DEFENSE.

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4 WITH RESPECT TO TRIAL COUNSEL'S FAILURE TO MAKE A MOTION TO DISMISS THE INDICTMENT PRIOR TO TRIAL.

We affirm substantially for the reasons expressed by Judge Robert C. Billmeier in his thorough and well-reasoned amended opinion of October 18, 2013. We add only the following.

Defendant was convicted of participating in the brutal robbing and killing of a stranger on a street in Trenton. His three co-defendants pled guilty to lesser charges and testified against defendant at trial. An eyewitness to the beating also testified. We affirmed on direct appeal. State v. Bing-Jackson, supra, slip op. at 13. The Supreme Court denied defendant's petition for certification. Bing-Jackson, supra, 208 N.J. at 336.

We first review the well-established principles guiding our PCR review. Defendant's petition arises from the application of Rule 3:22-2, which permits collateral attack of a conviction based upon a claim of ineffective assistance of counsel. See R. 3:22-2(a). To establish an ineffective assistance of counsel claim, a defendant must satisfy the two-part Strickland test, which requires that: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment, and (2) the deficient performance truly "prejudiced the defense." See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 457 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52, 58 (1987) (adopting the Strickland two-part test in New Jersey). Prior adjudication of an issue, particularly on appeal, bars PCR. R. 3:22-5.

There is a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We must therefore engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)).

A PCR judge should only grant an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case, "defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington." Id. at 463. A defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "He must allege [specific] facts sufficient to demonstrate counsel's alleged substandard performance." Ibid.

Defendant is precluded from obtaining relief on the basis of deficiencies in the grand jury proceedings after being convicted at trial. "[P]rocedural irregularities in a grand jury proceeding are rendered harmless where defendant is ultimately found guilty by a petit jury." State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996). Defendant's other concerns are addressed at length in Judge Billmeier's decision. We agree with Judge Billmeier's conclusion that defendant was fully apprised of his right to testify and his lawyer represented him in a competent fashion.

Affirmed.