STATE OF NEW JERSEY v. GERONIMO SHABAZZ a/k/a JAMES WASHINGTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6717-04T46717-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERONIMO SHABAZZ a/k/a JAMES WASHINGTON

Defendant-Appellant.

____________________________

 

Submitted March 20, 2007 - Decided June 28, 2007

Before Judges Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Ind. Nos. 98-02-0123/98-10-1023.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Geronimo Shabazz appeals from an order denying his petition for post-conviction relief (PCR), without an evidentiary hearing, entered on June 22, 2005. We affirm.

On September 28, 1997, defendant was charged in Passaic County Indictment No. 98-10-1023, with fourth-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) and b(11) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and (3) third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three). Defendant was tried in abstentia, and convicted by a jury of all charges on December 10, 1998.

On January 6, 1998, defendant was again charged with drug offenses in a three count indictment (No. 98-10-1023). He pled guilty to the third count, third-degree possession of CDS with intent to distribute within 1000 feet of school property, on September 23, 1999. The terms of the plea agreement provided that in exchange for his guilty plea, defendant would be sentenced to a custodial term of five years with a two-year period of parole ineligibility to run concurrent with the sentence to be imposed by the court for the 1998 conviction; the other two counts of the indictment were to be dismissed.

That same day, defendant also pled guilty to two counts of third-degree possession of CDS with intent to distribute within 1000 feet of school property, as set forth in Accusation No. 99-09-889A, which had been filed on September 23, 1999. The plea agreement provided that defendant would be sentenced on the first count of the accusation to a custodial term of five years, with a two-year period of parole ineligibility, to run concurrently with the sentence to be imposed on the 1998 conviction, and, on the second count, a custodial term of five years with a two-year period of parole ineligibility that would run consecutively to count one, but concurrently to his sentence to be imposed on the 1998 conviction.

Judge Clark accepted defendant's guilty plea to the one remaining count of Indictment No. 98-10-1023 and the two counts of Accusation No. 99-09-889A. She sentenced defendant in accordance with the plea agreements. Sentencing on the original convictions, under Indictment No. 98-02-0123, was held on November 12, 1999. Judge Clark granted the State's request for an extended term, merged the first two convictions into the third, and sentenced defendant to a term of incarceration for ten years with a five-year parole ineligibility period on count three, third-degree possession of CDS with intent to distribute within 1000 feet of school property. Applicable penalties and assessments were imposed.

Defendant's conviction and sentence were affirmed by us in an unpublished opinion dated January 17, 2002. State v. Washington, No. A-0631-004 (App. Div. Jan. 17, 2002). Certification was denied on March 20, 2002.

Defendant filed a PCR petition, which, in addition to challenging the effectiveness of trial counsel, also alleged two trial errors. After due consideration of all issues raised, Judge Clark denied the petition for PCR.

On appeal, defendant pursues only the ineffective assistance claims raised below, and also challenges his sentence as excessive, in these arguments:

POINT I

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED SHABAZZ OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

POINT II

SHABAZZ'S SENTENCE WAS EXCESSIVE AND UNFAIR.

POINT III

THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS THE CLAIMS RAISED BY SHABAZZ.

To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test. First, he must demonstrate that his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987). Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).]

Judge Clark, in her comprehensive oral decision rendered on June 22, 2005, addressed each claimed instance of ineffective assistance of counsel, concluding:

So[,] as far as [defense counsel's] performance was concerned, re-reading this transcript -- and I complimented him at the sentence that I thought he had done an excellent job under difficult circumstances . . . and re-reading the transcripts in their entirety[,] I only reinforced that feeling that he did an excellent job.

The record fully supports a conclusion that defendant has failed to meet both prongs of the Strickland/Fritz test. Trial evidence included not only testimony from the police officers, who conducted the undercover surveillance and the State's expert on street-level narcotics distribution, but also defendant's former live-in girlfriend, who was named as a co-defendant and testified on behalf of the State pursuant to the terms of a plea agreement. We also determine there is no merit to the suggestion that counsel's representation prior to trial was deficient. Pre-trial defense applications made under State v. Sands, 76 N.J. 127 (1978) and State v. Brunson, 132 N.J. 377 (1993), were rendered moot by defendant's failure to appear at trial; and the motion to suppress was properly denied. The remaining claims advanced by defendant that trial counsel inadequately investigated defendant's case are generally made. Defendant presents no facts, supported by affidavits or certifications based upon personal knowledge, demonstrating evidence that an investigation would have revealed had it been undertaken. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Such broad accusations do not support defendant's assertion that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant's excessive sentence claim has been reviewed and the sentence has been affirmed. Therefore the argument again presented is not properly before us. See R. 3:22-5; State v. Ellis, 346 N.J. Super. 583, 596 (2002).

Finally, Rule 3:22-10 recognizes the PCR court's discretion to conduct evidentiary hearings. An evidentiary hearing is not mandatory, but becomes necessary when a defendant presents a prima facie basis to support the grant of relief by demonstrating a reasonable likelihood that his claim will ultimately succeed on the merits. State v. Preciose, 129 N.J. 451, 462 (1992). Defendant failed to meet this burden. We conclude Judge Clark properly acted within the scope of her discretion in not conducting an evidentiary hearing.

 
Affirmed.

(continued)

(continued)

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A-6717-04T4

June 28, 2007