STATE OF NEW JERSEY v. DANIEL DANDOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5882-06T45882-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL DANDOR,

Defendant-Appellant.

_______________________________________

 

Submitted September 16, 2008 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4563.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daniel Dandor appeals from an order entered on March 12, 2007, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with murder, in violation of N.J.S.A. 2C:11-3a(1) and (2) (count one); burglary, in violation of N.J.S.A. 2C:18-2 (count two); felony murder, in violation of N.J.S.A. 2C:11-3a(3) (count three); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d (count four); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d (count five). Counts two and three were dismissed prior to trial.

Defendant was found guilty on counts one and four, and not guilty on count five. On count one, defendant was sentenced to thirty years of incarceration, with a thirty-year period of parole ineligibility. He was sentenced to six months of incarceration on count four.

Defendant appealed and raised the following issues:

POINT I:

DEFENDANT'S RIGHTS UNDER THE UNITED STATES CONSTITUTION, AMEND V, AMEND XIV AND NEW JERSEY COMMON LAW, STATE v. HARTLEY, 103 N.J. 252 (1986) WERE VIOLATED BY INTRODUCTION OF HIS INVOLUNTARY AND COERCED STATEMENT OBTAINED WHILE HE WAS IN THE HOSPTIAL BED.

A. THE HOSPITAL SETTING AS SITUS FOR INTERROGATION WAS CLEARLY CUSTODIAL.

B. THE READING OF MIRANDA RIGHTS DOES NOT IPSO FACTO REMOVE THE ISSUE OF VOLUNTARINESS. THE STATE DID NOT SUSTAIN ITS HEAVY BURDEN OF DEMONSTRATING UNDER THE TOTALITY OF CIRCUMSTANCES TEST THAT DEFENDANT'S INCRIMINATORY STATEMENT WAS MADE KNOWINGLY, INTELLIGENTLY AND WITH THE ABILITY TO MAKE CRITICAL SELF-DETERMINATIONS.

POINT II:

THE STATE'S FAILURE TO SUSTAIN ITS BURDEN OF PROOF REQUIRED [THE] ENTRY OF [A] JUDGMENT OF ACQUITTAL IN DEFENDANT DANIEL DANDOR'S FAVOR; IN THE ALTERNATIVE, THE JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III:

ROBERT SOSNICKI'S TESTIMONY AS AN EXPERT WITNESS WAS IMPROPER AND DEFENDANT WAS SUBSTANTIALLY PREJUDICED BY ITS ADMISSION.

We rejected these arguments and affirmed. State v. Dandor, No. A-5034-01 (App. Div. Oct. 8, 2004). Defendant thereafter filed a petition for certification with the Supreme Court seeking review of our judgment. The Court denied defendant's petition. State v. Dandor, 182 N.J. 429 (2005).

On August 18, 2005, defendant filed a pro se petition for PCR in the trial court, in which he indicated that he intended to challenge the admission of his statements to the police and seek a reduction of his sentence. The court appointed PCR counsel, who filed a brief raising the following points: (1) defendant is not precluded from raising any issue in his petition for PCR; (2) defendant was denied the effective assistance of counsel because his trial attorney did not prepare adequately for trial; (3) defendant was denied the effective assistance of appellate counsel; and (4) the accumulation of errors required that defendant be retried.

Judge Michael L. Ravin heard oral argument on the petition on March 8, 2007. The judge thereafter filed a written opinion in which he concluded that PCR should be denied. The judge entered an order dated March 12, 2007, denying defendant's petition. This appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT I:

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS INVOLUNTARY CONFESSION VIOLATED THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT II:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.

A. Trial Counsel Failed To Adequately Prepare For Trial.

B. Trial Counsel Induced Defendant Not To Testify.

C. Defendant Was Denied Effective Assistance Of Appellate Counsel.

D. The Cumulative Errors Mandate That Defendant's Convictions Be Reversed Or That He Be Afforded An Evidentiary Hearing.

POINT III:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING FOR THE LOWER COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE ADMISSIBILITY OF DEFENDANT'S CONFESSION AND TRIAL COUNSEL'S ALLEGEDLY INDUCING DEFENDANT NOT TO TESTIFY. (Not Raised Below).

We have thoroughly reviewed the record in light of defendant's arguments and the applicable law. We are convinced that defendant's contentions are without merit. We therefore affirm the order denying defendant's petition for PCR substantially for the reasons stated by Judge Ravin in his written opinion. R. 2:11-3(e)(1)(A) and (E). We add the following brief comments.

Defendant argues that his confession was involuntary and its admission into evidence at trial violated his right against self-incrimination under the Fifth Amendment to the United States Constitution. Defendant acknowledges that he raised this argument in his direct appeal, and it was rejected on the merits. Defendant nevertheless maintains that he is not barred from re-litigating the issue and asserts that our earlier decision was incorrect. Rule 3:22-5 provides, however, that

[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . or in any appeal taken from such proceedings.

The rule precludes consideration of a contention raised in a PCR petition if the issue has been adjudicated previously on direct appeal or in a prior PCR proceeding. State v. McQuaid, 147 N.J. 464, 484 (1997). Because defendant's argument regarding the admission of his confession was raised and adjudicated in his direct appeal, Rule 3:22-5 precludes him from raising that contention again.

Next, defendant argues that he was denied the effective assistance of trial and appellate counsel. To determine whether the deficiencies in representation undermine defendant's constitutional right to counsel, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

First, the defendant must show that his attorney "'made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "'[N]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.'" Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Furthermore, there is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Second, the defendant must show that his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "[P]rejudice must be proved; it is not presumed." Ibid. (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97). The defendant must establish that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting 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. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant argues that defense counsel should have conducted a more extensive cross-examination of Detective Rasheed Sabur to emphasize the absence of DNA evidence tying him to the murder. He also claims that defense counsel should have called his landlady as a character witness. Judge Ravin held, however, that these actions were "clearly tactical" and did not fall "below a level of reasonable competence." The judge further found that, even assuming that counsel was deficient, defendant failed to show that the outcome of the trial would have been different if defense counsel had more extensively cross-examined Detective Shabur regarding the absence of DNA evidence, or called defendant's landlady as a character witness. We are convinced that the record fully supports the judge's findings.

Defendant additionally argues that counsel was deficient because his attorney "induced" him not to testify at trial. In our view, the contention is without merit. At the trial, the judge informed defendant that he had a right to testify. The judge asked defendant if he had spoken to his attorney about testifying and defendant said that they had discussed the matter. The judge asked defendant if he understood that it was his "right to decide whether or not [he] should testify or not." Defendant said that he understood. Defendant then told the judge that he did not want to testify. The trial judge found that defendant had voluntarily elected not to testify.

Defendant further argues that he was denied the effective assistance of appellate counsel. He asserts that counsel did not provide him with correspondence, copies of the brief, paperwork or transcripts and, therefore, he was not able to assist counsel in the preparation of the appellate brief. Judge Ravin found, however, that defendant failed to show that appellate counsel was deficient in his handling of the appeal, or that the result of the appeal would have been different if appellate counsel had given defendant an opportunity to assist in the preparation of the brief. The record supports that finding.

Last, defendant argues that the trial judge should have conducted an evidentiary hearing on his claims. We disagree. As we stated previously, defendant's claim regarding the admissibility of his confession was barred by Rule 3:22-5. Moreover, defendant failed to present a prima facie case of ineffective assistance of trial or appellate counsel. In the circumstances, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1999).

We have considered all of the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

We note, however, that the judgment of conviction entered on May 3, 2002 does not state that the sentence on count four is concurrent to the sentence on count one. The transcript of the sentencing proceeding indicates that the judge imposed concurrent sentences. Therefore, we remand the matter to the trial court for entry of a corrected judgment.

Affirmed and remanded for entry of a corrected judgment of conviction.

 

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A-5882-06T4

October 8, 2008