STATE OF NEW JERSEY v. SOO W. KIM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1448-06T51448-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SOO W. KIM,

Defendant-Appellant.

________________________________________________________________

 

Submitted August 14, 2007 - Decided August 21, 2007

Before Judges Sabatino and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2291.

David Fronefield, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Soo W. Kim appeals from a September 27, 2006 order denying his first petition for post-conviction relief (PCR). On March 14, 2006, defendant was convicted of second degree complicity for his role in providing a fraudulent immigration document to a state agency, in violation of N.J.S.A. 2C:2-6 and N.J.S.A. 2C:21-17.2 (count one); fourth degree complicity and forgery, in violation of N.J.S.A. 2C:2-6 and N.J.S.A. 2C:21-1(a)(3) (count two); and second degree sale of a simulated document, in violation of N.J.S.A. 2C:21-2.1 (count three). The court sentenced him to concurrent terms of six years imprisonment on counts one and three, and a seven month concurrent term of imprisonment on count two. Defendant did not file a direct appeal.

On June 12, 2006, defendant filed a petition for post-conviction relief in which he asserted that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and Art. I, paragraph 10 of the New Jersey Constitution. The petition alleges that his trial attorneys breached their duty of loyalty to him by accepting a legal fee paid on his behalf by a third party Tao Lee, "an unindicted co-conspirator." Defendant further alleged that the fee arrangement deprived him of "reasonably competent advice and counsel unfettered by duplicity." He argues that the trial court erred when it denied his petition for post-conviction relief without affording him an evidentiary hearing, pursuant to State v. Preciose, 129 N.J. 451, 462 (1992). We disagree and affirm.

I.

The testimony at trial established that defendant assisted Mi Suk Park Lee in her effort to fraudulently obtain a New Jersey driver's license. Park was ineligible to obtain one because she did not live in New Jersey and her tourist visa had expired. Park and her husband learned from other members of the Korean community that the East West Study Abroad Center (East West) in Fort Lee could "help" them overcome those obstacles in return for payment of a substantial fee. Park and her husband communicated with the director of East West, Tao Lee. Lee directed Park to deliver her Korean passport to his office and to return approximately two months later, at which time one of Lee's employees would drive her to the Motor Vehicle Commission (MVC) office in Lodi to assist her in obtaining a driver's license. The fee for such assistance was $1200.

On August 17, 2004, Park and her husband returned to East West, where they were met by defendant who drove them to the MVC office in Lodi. Defendant presented Park with her passport, which had been altered to show a fraudulent date of entry into the United States. Defendant also provided her with a Verizon phone bill in her name, which listed her residence as 333 Grand Avenue in Palisades Park, even though she did not reside there. Defendant explained to Park what she should do once she entered the MVC office.

When Park was unable to complete the address section of the driver's license application, an MVC employee asked her where she lived. Park became jittery, and answered Pennsylvania, then New York, and then Palisades Park. Suspicious, the MVC employee showed Park's documents to Doris Topham, an MVC employee who was an expert in document fraud. Topham's review of Park's Korean passport and visa caused her to conclude that the documents had been fraudulently altered. Lodi police were called, and they questioned Park about the documents and asked her who had driven her to the MVC office. Park's answers led them to arrest defendant, who was sitting in his car fifty feet from the entrance to the MVC office.

Defendant testified that he worked for Lee earning $400 per week driving applicants to motor vehicle offices and performing miscellaneous errands for Lee. He testified that when he drove Park and her husband to the MVC office in Lodi, he had simply presented them with a sealed envelope containing the documents that Lee had provided. He never inspected the documents before handing them over to Park, and was not asked to prepare, compile or alter any documents. Defendant denied giving Park specific advice on how to complete the driver's license application and denied instructing her to return to his car in the parking lot for further assistance if she should encounter any difficulty in completing the necessary documents. Until Park was arrested, defendant allegedly had no idea that the documents were fraudulent, explaining that he was merely transporting Lee's customers to the DMV office without ever being aware that the documents were fraudulent.

In rebuttal testimony, both Park and her husband testified that the documents defendant handed to her were not in a sealed envelope. The jury returned a verdict finding defendant guilty on all three counts.

Prior to trial, the State provided defendant with a plea offer in which the State would recommend a term of probation in return for defendant's plea of guilty and agreement to cooperate with the State and testify against Lee. Defendant rejected that plea offer, even after the judge reviewed its terms with him at length, and demanded a trial. One day earlier, on May 3, 2005, Park and her husband, who were also named as defendants in the same indictment, entered pleas of guilty in which they implicated defendant. During the pretrial hearing and at trial, defendant was represented by attorney Elton Bozanian.

In his opening statement, Bozanian emphasized that defendant was not the person who dealt with the Parks and that it was Lee, not defendant, who had instructed Park to drop off her passport and pay a fee of $1200. Bonzanian also argued in his opening statement that defendant had unwittingly and unsuspectingly been used by Lee, that defendant was innocent of any wrongdoing and the true culprit, Lee, was not on trial.

Bozanian's cross-examination of the State's witnesses continued to emphasize defendant's argument that he was not involved in the scheme. In particular, Bozanian elicited testimony from an MVC employee that Park never stated defendant was involved in the criminal scheme. Bozanian also elicited testimony from Park and her husband that they dealt only with Lee at the East West Center and never spoke to defendant until the day he drove them to the MVC office. Finally, both Park and her husband acknowledged that they had no idea who prepared the false documents and were never told to make the check payable to defendant. On summation, Bozanian repeated his theme, attempting to distance his client from Lee.

At the conclusion of the State's case, Bozanian moved for a judgment of acquittal, arguing that the State's evidence showed that Lee was the person who made the arrangements and provided the documents, and all the defendant did was drive the Parks to the Lodi motor vehicle office. After the court denied the motion for a judgment of acquittal, Bozanian in his summation continued to press the argument that defendant was simply an innocent driver and not the true criminal in the scheme.

After obtaining new counsel, defendant filed a PCR petition on June 12, 2006, alleging that Bozanian had a conflict of interest that constituted ineffective assistance of counsel. Specifically, defendant submitted an affidavit asserting that Lee paid the entire fee Bozanian charged for defendant's defense. At the PCR hearing, defendant argued that Bozanian had a conflict of interest that rendered him incapable of providing independent legal advice to defendant on whether he should accept the State's plea offer of probation because Bozanian had been paid by Lee, the very person the State required defendant to implicate as part of that plea agreement. When asked by the judge to identify particular instances of divided loyalty constituting ineffective assistance of counsel, defendant's new attorney replied "I don't--judge, at this juncture I'd have to review it again and go over it again. I think . . . [Bozanian should] have considered calling Mr. Tao Lee as a witness . . . [b]ut, given his conflict, I don't think he could do that. . . ."

Other than pointing to Bozanian's failure to have called Lee as a defense witness, defendant was unable to identify any other possible instances of a conflict of interest causing ineffective assistance of counsel. Instead, defendant argued that "the more important thing to look at is to have an evidentiary hearing to . . . thresh [sic] out the circumstances under which this plea offer was discussed between [defendant and Bozanian] . . . ."

Judge Roma issued a written opinion finding that defendant had not established a prima facie case and was therefore not entitled to an evidentiary hearing under Preciose, supra, 129 N.J. at 462. In that opinion, Judge Roma explained the basis for his conclusion that defendant's petition should be denied:

[D]efendant asserts that his counsel during trial provided ineffective assistance because his counsel was being paid for on his behalf by the defendant's employer, thereby breaching his duty of loyalty to the defendant. In examining the affidavits filed by the defendant . . . the defendant does not assert that he was not informed of the plea negotiations. The defendant merely states that he declined the offer after consultation with his attorney.

At most, the defendant's affidavits show only that trial counsel was paid for by the defendant's employer on the defendant's behalf. The defendant does not state that he was not aware of this payment, nor does he provide sufficient facts to show that the conduct of his trial attorney was improper. The court also notes the record will reflect that trial counsel engaged in substantial argument asserting that the defendant's employer was the mastermind and the culpable party.

The court finds the defendant has not proven all prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must demonstrate the reasonable likelihood of succeeding in showing that trial counsel was ineffective by his deficiency and that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Based on the facts set forth in the defendant's papers, this court finds that the defendant has not met the above-referenced prima facie showing. . . . Accordingly, the defendant's petition for post-conviction relief is denied.

II.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10.

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland. First, defendant must show that defense counsel's performance was indeed deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland and its tests have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is rarely presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 688 n.26 (1984).

Because the disposition of ineffective assistance of counsel claims requires the court to consider issues outside of the trial record, an evidentiary hearing may be necessary. Preciose, supra, 129 N.J. at 462. Defendant must, however, establish a prima facie case of ineffective assistance of counsel in order to be entitled to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Preciose, supra, 129 N.J. at 462. In determining whether an evidentiary hearing should be conducted:

the PCR court should ascertain whether the defendant would be entitled to post-conviction relief if the facts were viewed "in the light most favorable to defendant." If the inquiry is answered affirmatively, then the defendant generally is entitled to an evidentiary hearing in order to prove the allegations. We observe, however, that there is a pragmatic dimension to the PCR court's determination. 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, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Marshall, 148 N.J. at 158 (citations omitted).]

Our review of defendant's ineffective assistance of counsel claim requires an analysis of his conflict of interest argument. The federal and state constitutions afford an accused the right to the effective assistance of counsel unhampered by any conflict of interest that adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); State v. Norman, 151 N.J. 5, 23 (1997); State v. Bellucci, 81 N.J. 531, 538 (1980). A defendant should have the undivided loyalty of his attorney, State v. Sanders, 260 N.J. Super. 491, 496 (App. Div. 1992), and representation "'untrammeled and unimpaired'" by conflicting interests. Norman, 151 N.J. at 23 (quoting Bellucci, 81 N.J. at 538). When an attorney operates under a conflict of interest, "[t]he resulting representation may be more harmful than the complete absence of a lawyer." Bellucci, 81 N.J. at 538.

When a defendant's legal fees are paid by a third party, a potential conflict of interest is presented. Norman, supra, 151 N.J. at 34. In such circumstances, no per se conflict of interest exists and the defendant must demonstrate the existence of a potential or actual conflict of interest. Id. at 25-26.

Indeed, in Norman the Court confined the per se rule to "those few well-defined cases in which prejudice is presumed." 151 N.J. at 30. The Court held that a fact-sensitive case-by-case assessment of the potential for a conflict of interest must be conducted. Ibid. When analyzing conflict of interest claims, the Court has recognized "the danger of absolute rules that are inflexible in recognizing the subtleties of the facts of specific cases." Id. at 29. The Court held "that automatic reversals of well-supported criminal convictions without inquiring into the fairness and justness of the verdict should be the exception and not the rule," and instead "recognized the desirability of a flexible rule that would not compromise the constitutional right to effective and unconflicted representation." Ibid.

In Norman, the Court addressed the ineffective assistance of counsel claims of a defendant whose legal fee had been paid by his co-defendant, and held that a defendant must make "a showing of a significant actual or potential conflict that created a substantial likelihood of prejudice." Id. at 35-36. Accordingly, here defendant was required to do more than simply point to Lee's payment of Bozanian's fee, because a per se finding of a conflict of interest is not applicable merely because a co-defendant, or here a potential defendant such as Lee, paid a defendant's legal fee. Id. at 36.

Indeed, the Rules of Professional Conduct specifically permit a lawyer to accept compensation for representing a client from someone other than the client so long as "the client gives informed consent" and "there is no interference with the lawyer's independence of professional judgment or with the lawyer-client relationship." RPC 1.8(f). Accordingly, the payment arrangement, standing alone, does not constitute an unethical practice. Only if Lee's payment of Bozanian's fee undermined the duty of loyalty Bozanian owed to defendant is such payment impermissible.

Judge Roma was correct when he determined that defendant was required to show a significant risk of a potential conflict of interest that created a substantial likelihood of prejudice. At oral argument, the judge asked defendant's new counsel to identify facts in the record that demonstrated an actual or potential conflict of interest. In response to the judge's question, the only prejudice defendant alleged was Bozanian's failure to have called Lee as a defense witness. That claim must fail.

In State v. Cummings, 321 N.J. Super. 154, 171 (App. Div. 1999), we upheld a trial court's refusal to grant an evidentiary hearing in a PCR proceeding when the defendant merely asserted in a conclusory fashion that his attorney had inadequately investigated the facts and failed to call a potential witness. Ibid. We held that where a potential witness was himself a suspect in the case, it was highly doubtful that he would have talked to defense counsel. Ibid. We further concluded that the defendant "offer[ed] nothing as to what those witnesses would have said had they been interviewed." Ibid. Under those circumstances, we concluded that a prima facie showing of ineffective assistance of counsel had not been made. Ibid.

Here, like the defendant in Cummings, defendant has failed to produce an affidavit specifying the testimony Lee would have given had he been called as a witness or explaining how Lee's testimony would have exonerated defendant. We also conclude, as we did in Cummings, that Lee would in all likelihood have refused to testify in defendant's behalf because cross-examination would have created a substantial risk that he would have incriminated himself. We therefore reject defendant's claim that Bozanian was ineffective when he failed to call Lee as a witness.

The circumstances surrounding defendant's rejection of the State's plea offer present a closer question. As we have noted, defendant would have received a probationary term had he agreed to plead guilty and testify against Lee in any future trial. Lee was, as defendant characterizes him, his "benefactor." As the Court observed in Norman, supra, "[t]his fee arrangement clearly has a chilling effect upon a [defendant] who is considering cooperation, since his access to . . . paid counsel depends directly on his agreement not to cooperate." 151 N.J. at 36 (quoting Pirillo v. Takiff, 341 A.2d 896, 904 (Pa. 1975), cert. denied, 423 U.S. 1083, 96 S. Ct. 873, 47 L. Ed. 2d 94 (1976)).

Our evaluation of whether Lee's payment of defendant's legal fees tainted Bozanian's advice about the State's plea offer requires us to review both the affidavit filed by defendant in support of his PCR petition and his arguments during the PCR hearing. We agree with the State that what defendant failed to say is far more significant than what he did say. Missing from defendant's affidavit is any contention that Bozanian's advice to him about the plea offer was affected by Lee's payment of his legal fee; that Bozanian pressured him to reject the plea offer; or that Bozanian suffered from the divided loyalty that we found so problematic in Norman. Id. at 36.

Additionally, nowhere in defendant's affidavit does he assert that Bozanian failed to tell him of the State's offer of leniency if he would cooperate against Lee, and indeed the record demonstrates that defendant was aware of that plea offer and rejected it. Nor does defendant claim that Bozanian gave him any advice which would have had the effect of protecting Lee at defendant's expense. Bozanian was obliged to abide by defendant's decision to reject that offer. RPC 1.2(a) (stating that in a criminal case, the lawyer must abide by the client's decision on whether to proceed to trial). Nor does defendant allege that he was unaware that Lee had paid his fee. Instead, defendant's affidavit is confined to the bare contention that because Lee paid Bozanian's fee, he was denied effective assistance of counsel at the time he rejected the State's plea offer. Norman requires a defendant to present facts from which a "significant actual or potential conflict" is demonstrated. Ibid. Defendant did not satisfy that burden in connection with his rejection of the plea offer.

Defendant also relies on Rules of Professional Conduct 1.4, 1.7 and 1.16. Such reliance is unavailing. Nothing in the record demonstrates that Bozanian violated the duty set forth in RPC 1.4 to provide defendant with sufficient information to permit him to make informed decisions regarding the representation because defendant does not assert that he was ignorant of who paid Bozanian's fee. Nor did the payment arrangement violate RPC 1.7 because nothing in the record demonstrates that Lee was, or ever had been, a client of Bozanian's, and accordingly Bozanian's representation of defendant was not adverse to any representation of Lee. Finally, the payment arrangement did not violate RPC 1.16 because the record is devoid of any conflict of interest that should have caused Bozanian to decline or withdraw from his representation of defendant.

Our careful review of the record establishes that Judge Roma properly determined that defendant had not presented sufficient evidence to entitle him to an evidentiary hearing. Not only did defendant fail to point to any evidence of divided loyalty on Bozanian's part, but the record demonstrates that Bozanian represented defendant by pointing to Lee as the true culprit who duped defendant and caused him to unwittingly participate in a criminal enterprise. Nothing in the record suggests that Bozanian's representation of defendant was in any way hampered by Lee having paid defendant's legal fees. Defendant's contentions were "too vague, conclusory or speculative to warrant an evidentiary hearing." Marshall, supra, 148 N.J. at 158. Judge Roma's refusal to grant an evidentiary hearing and his denial of the PCR petition were correct.

 
Affirmed.

Defendant had two attorneys at trial, but his arguments at the PCR hearing and in his brief name only one of them.

Because Lee's last name is the same as that of Tao Lee, we will refer to Mi Suk Park Lee as Park in order to differentiate her from Tao Lee. Nothing in the record suggests they are related.

(continued)

(continued)

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A-1448-06T5

August 21, 2007