STATE OF NEW JERSEY v. NINA POWERS

NOT FOR PUBLICATION WITHOUT THE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.

NINA POWERS a/k/a

TCHIGLADZE NUNU,

Defendant-Appellant.

_______________________________

October 24, 2016

 

Submitted September 29, 2016 - Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-05-0984.

Clifford E. Lazzaro, attorney for appellant.

Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Special Deputy Attorney General /Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Nina Powers appeals from a July 10, 2015 Law Division order denying her petition for post-conviction relief (PCR). She seeks to vacate her convictions, entered following a jury trial for third-degree neglect of an elderly person, N.J.S.A. 2C:24-8(a), and fourth-degree endangering another person, N.J.S.A. 2C:12-2(b)(2). Her PCR petition maintained trial counsel provided ineffective assistance, arguing

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR POST[-]CONVICTION RELIEF.

POINT II

THE JURY CHARGE WITH RESPECT TO ELDER NEGLECT, N.J.S.A. 2C:24-8 WAS ERRONEOUS AND/OR CONFUSING REQUIRING REVERSAL.

We have reviewed the issues in light of the record and applicable law. We affirm.

The facts underlying defendant's convictions are stated in our prior unpublished opinion, which reviewed defendant's arguments presented on direct appeal. We incorporate these facts by reference. State v. Powers, No. A-4804-11 (App. Div. Nov. 20, 2014) (slip op. at 5-14). In that matter, more than one year following the filing of her notice of appeal, defendant moved to amend her case information statement and add a direct challenge to the issued jury instructions on the third-degree offense. Although trial counsel posited no objection at trial, defendant's motion asserted the jury instruction was erroneous and its use was plain error. See State v. Singleton, 211 N.J. 157, 182 (2012) ("Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge."). We denied the motion to amend, as well as the request for reconsideration, noting all briefs were filed, the matter was calendared, and "no good cause explanation for the delay in seeking this relief" was presented. After reviewing defendant's arguments on appeal, this court affirmed her convictions and remanded for correction of the sentence issued on the second count of the indictment. Id. at 187.

Defendant filed her petition for PCR asserting the jury charge was erroneous or, at best, confusing. Specifically, defendant argued the charge suggested criminal liability required only a finding she was negligent in caring for her client as a home health aide, rather than instructing the jury a conviction required the State to prove defendant acted knowingly to commit elder neglect. Defendant maintained trial counsel's failure to object to the jury charge required her conviction be vacated, in favor of a new trial.

Reviewing the PCR petition, the judge, who had also presided over defendant's trial, rejected these arguments. The judge found the charge properly tracked the model jury charge for the offense and accurately recited the State's burden. He determined defendant did not prove counsel's performance failed to provide reasonable professional assistance or caused prejudice. The judge denied defendant's PCR petition. This appeal ensued.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). New Jersey has adopted the familiar two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-prong test for PCR review).

It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result.

[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013) (citations omitted).]

Under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "[t]his test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).

To meet the second prong, "[a] defendant must show that there is 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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

Initially, the PCR judge concluded defendant's jury charge challenge was inappropriate for PCR because it should have been raised on direct appeal. See R. 3:22-4 (stating claims that could have been raised on direct appeal are barred from post-conviction review). Because counsel attempted to add this issue for this court's initial consideration a request found untimely we will review the merits of defendant's claim. See State v. Norman, 151 N.J. 5, 36 (1997) ("[B]ecause [a jury charge challenge] was raised neither at trial nor on direct appeal, [the] defendant[] must bring it under the ineffective-assistance-of-counsel standard.").

The alleged error underlying defendant's request for PCR is counsel did not act when the court improperly instructed the jury regarding the elements of the charged offense. See State v. Grunow, 102 N.J. 133, 148 (1986). Prior to consideration of this claim, we must examine the elements of the offenses and the jury instructions.

The indictment charged defendant with endangering the welfare of a disabled person in violation of N.J.S.A. 2C:24-8(a), which provides in pertinent part

A person . . . who has assumed continuing responsibility for the care of a . . . disabled adult, who abandons the . . . disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the . . . disabled adult, is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of an elderly person.

When instructing the jury, the judge recited the burden of proof and informed the jury the burden rested solely on the State to present evidence on each element of each offense showing defendant is guilty beyond a reasonable doubt. Advising the jury "defendant was charged with neglect of an elderly person," (emphasis added), the judge first read the statute, then identified the State's burden to prove each element, including: (1) the victim's age, (2) defendant's knowledge of the victim's age, (3) "that defendant unreasonably neglected to do or failed to permit to be done an act necessary for the physical or mental health of [the victim]," and (4) defendant had a legal duty to care for or had assumed continuing responsibility for the care of the victim.

Expounding on each element, the judge included these instructions regarding the third element, which is the subject of defendant's PCR challenge

The phrase, "neglected to do," means the same as the phrase, "fails to do."

In order to determine whether the alleged failure to care for [the victim] was unreasonable, you need to understand that the failure to exercise reasonable care constitutes negligence, which is a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

A person acts negligently with respect to a material element of an offense when he or she should be aware of a substantial and unjustifiable risk that the material element exists or will result from . . . his or her conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his/her conduct and the circumstances known to him or her, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

Defendant argues counsel should have challenged the charge as given, because it did not state defendant's conduct must be knowing. She asserts this lapse rendered counsel's assistance ineffective. We are not persuaded.

Defendant's argument ignores the express statutory language of N.J.S.A. 2C:24-8, which defines the mental state for culpable conduct as unreasonably negligent. See also N.J.S.A. 2C:2-2(b) (1) to (4) (defining culpability for criminal conduct, including purposely, knowingly, recklessly or negligently). Although the statute criminalizes conduct that knowingly abandons a disabled adult, defendant was not charged with the offense. The statute also addressed "unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the . . . disabled adult." N.J.S.A. 2C:24-8(a) (emphasis added). Therefore, an individual is criminally accountable when an actor unreasonably neglects to act, and that omission results in the impairment of the mental or physical health of an elderly and disabled adult, for whom the actor is responsible. Ibid. Defendant was charged with conduct the State alleged fell within this provision.

Following our review, we reject defendant's argument of error as an incorrect interpretation of the statute. The crime contains a mental state for guilt of the offense. There is no need to infer culpability pursuant to N.J.S.A. 2C:2-2(c)(3) (requiring use of "knowingly" when culpability is not defined in the statute).

Importantly, a presumption of correctness attaches to jury instructions that follow the model jury charges. See State v. R.B., 183 N.J. 308, 325 (2005) (stating trial court's obligation to deliver model charges); State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998), aff'd o.b., 158 N.J. 149, 150 (1999). See also Mogull v. CB Commer. Real Estate Grp., 162 N.J. 449, 466 (2000) ("It is difficult to find that a charge that follows the Model Charge so closely constitutes plain error."), certif. denied, 165 N.J. 607 (2000). Here, consistent with the governing law, the judge used the model charge, as amended on May 16, 2011, N.J. Model Jury Charge Criminal, "Neglect of Elderly or Disabled Persons (N.J.S.A. 2C:24-8) (2011)."1

We also reject defendant's suggestion the charge was confusing or suggested any act or omission satisfies the standard for criminal conduct. Here, the judge made it clear to the jury the conduct subject to punishment must be "a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." Contrary to defendant's contention, this charge fully explains the statutory element and "the charge as a whole" is accurate. State v. Jordan, 147 N.J. 409, 422 (1997).

Defendant's PCR petition is void of proofs establishing ineffective assistance of counsel. Therefore, we find no basis to vacate the July 10, 2015 order denying PCR relief.

Affirmed.

1 Defendant's reliance on the unpublished case, State v. DeRosa, No. A-5245-03 (App. Div. November 14, 2006), is unavailing. First, DeRosa predates the revision of the model charge. Second, we are not bound to following its rationale. R. 1:36-3; Lippman v. Ethicon, Inc., 222 N.J. 362, 385 n.5 (2015) ("Unpublished opinions have no precedential value and are not to be cited in argument to the courts of this State pursuant to the Court Rules.").