STATE OF NEW JERSEY v. NATASHA WHITE

NOT FOR PUBLICATION WITHOUT THE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.

NATASHA WHITE,

Defendant-Appellant.

________________________________________________________________

September 14, 2016

Submitted April 5, 2016 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3478.

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

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

PER CURIAM

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

Defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a), and other charges related to and leading up to her intentionally and fatally striking her victim with her automobile. The sentencing court imposed an aggregate sentence of forty-five years on March 24, 2009.

Defendant appealed and we affirmed her conviction and sentence in an unpublished opinion. State v. White, No. A-0304-09 (App. Div. July 10, 2012). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.

In our decision, we rejected defendant's arguments that: She was denied a fair trial when the court allowed two witnesses to proffer an opinion as to her guilt; counts in her indictment relating to a prior incident of domestic violence should have been severed; the trial court erred by not charging "causation;" her rights were violated because the State failed to preserve the "murder weapon" for examination by the defense, which fact the court improperly withheld from the jury; and her sentence was excessive because the court improperly weighed the aggravating and mitigating factors. The Supreme Court later denied her petition for certification. State v. White, 213 N.J. 568 (2013).

Defendant filed her first PCR petition on March 6, 2013. She argued defense counsel failed to assert an intoxication defense; failed to adequately cross-examine and impeach witnesses; failed to properly advise defendant about a plea offer; and failed to preserve evidence - her vehicle - for inspection by an expert.

Counsel submitted a brief on behalf of defendant. In this brief, defendant raised the additional claims that counsel failed to consult with defendant; failed to call character witnesses; failed to object to expert testimony and improperly withdrew an objection to another expert's testimony;1 failed to request "a jury charge on causation;" failed to provide the necessary affidavits to the court in support of defendant's post-verdict motion; prevented defendant from making "an informed decision regarding her right to testify;" and failed to argue applicable mitigating factors at sentencing. The brief also raised issues regarding the ineffective assistance of appellate counsel and argued that her claim was not barred by Rule 3:22-2.

The PCR court denied defendant's petition by order dated January 27, 2014. On the same date, Judge Alfonse J. Cifelli placed the court's reasons on the record for denying defendant's petition. The judge found that the issues about the two witnesses' testimony, the State's failure to preserve the "murder weapon," the court's failure to charge "causation," and her sentence were procedurally barred by Rule 3:22-5 as having been resolved in her direct appeal or as being claims that she should have raised in the appeal and, even if not, lacked any merit because any claim of ineffective assistance of counsel, even if true, would not have changed the outcome of the case. As to the balance of her claims, the judge found defendant failed to establish that counsel's performance was defective and concluded that defense counsel exercised "reasonable trial strategy." Judge Cifelli concluded that defendant failed to support her claims with any credible evidence that counsels' actions were anything but a proper exercise of trial or appellate strategy.

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

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS HER CONTENTION THAT SHE 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 COUNSEL'S FAILURE TO INCORPORATE AN INTOXICATION DEFENSE INTO HIS OVERALL DEFENSE OF HIS CLIENT, AND BY FURTHER FAILING TO REQUEST THE TRIAL COURT INSTRUCT THE JURY REGARDING INTOXICATION.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO THE EXPERT TESTIMONY ELICITED BY THE STATE FROM THE MEDICAL EXAMINER IN WHICH HE OPINED THE CAUSE AND MANNER OF DEATH WAS A HOMICIDE WITHIN A 99.9 PERCENT CERTAINTY.

D. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S CROSS-EXAMINATION OF DETECTIVE ARNOLD ANDERSON, DURING WHICH HE ELICITED EXTREMELY DAMAGING TESTIMONY WHICH HAD NOT BEEN PART OF THE DETECTIVE'S ORIGINAL REPORTS PROVIDED TO THE DEFENSE AS PART OF DISCOVERY AND WHICH, ACCORDINGLY, WOULD NOT OTHERWISE HAVE BEEN ADMISSIBLE.

E. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION OF COUNSEL AT SENTENCING AS A RESULT OF COUNSEL'S FAILURE TO DEMONSTRATE THE INAPPLICABILITY OF AT LEAST ONE OF THE TWO AGGRAVATING FACTORS FOUND BY THE TRIAL COURT TO EXIST, AS WELL AS BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS IGNORED BY THE TRIAL COURT.

POINT II

THE TRIAL COURT ERRED IN DENYING CERTAIN ASPECTS OF THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.

POINT III

THE POST-CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

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 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.

We affirm substantially for the reasons stated by Judge Cifelli in his comprehensive oral decision, as we are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

1 As argued by defendant in her appeal, these were the same two witnesses improperly allowed to give opinions as to her guilt.