STATE OF NEW JERSEY v. KARIM A. DORSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KARIM A. DORSEY,

Defendant-Appellant.

________________________________________________________________

October 17, 2016

Submitted September 27, 2016 Decided

Before Judges Messano and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-10-1705 and 07-10-1775.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) following oral argument and without an evidentiary hearing. We affirm, substantially for the reasons set forth by Judge Michael A. Toto.

Defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, second-degree burglary N.J.S.A. 2C:18-2, second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). We affirmed his convictions and remanded for the imposition of a mandatory minimum term of imprisonment on the certain persons offense and entry of corrected judgments of conviction. State v. Dorsey, No. A-5759-10 (June 21, 2013), certif. denied, 217 N.J. 53 (2014). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated at length here.

Defendant's convictions arose from a home invasion by four gun-wielding masked men. Two co-defendants, Preston McCloud and Corderrol Priester, were charged with defendant. Priester entered an open guilty plea and was called as a witness by McCloud at trial. Priester exculpated both defendant and McCloud, testifying that neither had participated in the home invasion and that he first saw them when they were arraigned together. Priester stated he committed the home invasion with one person who was deceased and two others he had never met before. Priester testified they fled when police arrived and discarded their shirts a few houses away. Among the clothing recovered nearby was a shirt bearing defendant's DNA. McCloud's mother, Glenis McCloud, testified that some of her son's clothing was stolen in a burglary of their residence several months before the home invasion. The jury convicted defendant and acquitted McCloud.

In his PCR petition, defendant alleged he was denied effective assistance of counsel. He faulted the adequacy of counsel's investigation and preparation, stating she "failed to investigate aggressively a break in the chain of evidence by the police in securing the abandoned shirts which contained incriminating DNA" and failed to interview Glenis McCloud and Corderrol Priester. He also alleged counsel was ineffective in failing to file a speedy trial motion, a motion for severance from his co-defendant, Preston McCloud, and a motion to dismiss the indictment.

Defendant's claims of ineffective assistance are measured against familiar principles. 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 of establishing both 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.

There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. We "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." State v. Castagna, 187 N.J. 293, 314-15 (2006) (citation omitted).

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). "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. Marshall, 148 N.J. 89, l58 (1997) (citations omitted).

Judge Toto reviewed the principles of law applicable to defendant's PCR petition and addressed each of his allegations in turn. He found it was not objectively unreasonable for trial counsel to fail to file a severance motion and that, even if such a motion had been filed, it was unlikely to succeed. Accordingly, the allegation failed to show defendant suffered any prejudice or a reasonable probability that the outcome would have been different.

Judge Toto turned to defendant's claim his counsel was ineffective for failing to interview Glenis McCloud and Priester. Defendant did not provide any affidavits or certifications to demonstrate what facts these interviews would have yielded. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Judge Toto rejected defendant's "bald assertions" that the failure to conduct these interviews prejudiced him and concluded this allegation failed to satisfy the second Strickland prong.

As to defendant's claims regarding pretrial motion practice, Judge Toto found no basis to conclude the failure to file motions was objectionably unreasonable or that defendant suffered any prejudice because the result of the proceedings would have been different if the motions had been filed.

Finally, Judge Toto considered defendant's claim that his trial counsel was ineffective for failing to "aggressively investigate" the chain of custody regarding the recovered clothing. The judge noted that there had been a discrepancy between the testifying detective's description of one of the shirts at trial and the description of the shirts in his report, a discrepancy trial counsel highlighted in arguing for defendant's acquittal. Accordingly, Judge Toto found this claim lacking in merit.

In his appeal, defendant presents the following argument for our consideration.

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 FROM TRIAL COUNSEL.

We are not persuaded by defendant's arguments. Our review of the record confirms that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, Judge Toto correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.