STATE OF NEW JERSEY v. GARY WILLIAMS

NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0976-08T4



STATE OF NEW JERSEY,

         Plaintiff-Respondent,

    v.

GARY WILLIAMS,

         Defendant-Appellant.

_________________________________________

         Submitted March 8, 2010 ­ Decided    May 26, 2010

         Before Judges Rodríguez and Yannotti.

         On appeal from the Superior Court of New
         Jersey, Law Division, Atlantic County,
         Indictment Nos. 03-03-0501 and 03-06-1048.

         Yvonne Smith Segars, Public Defender,
         attorney for appellant (Michael C. Kazer,
         Designated Counsel, on the brief).

         Theodore F. L. Housel, Atlantic County
         Prosecutor, attorney for respondent (Jack J.
         Lipari, Assistant Prosecutor, of counsel and
         on the brief).

PER CURIAM

    Defendant, Gary Williams, appeals from the denial of his

petition for post-conviction relief (PCR), challenging his

conviction and sentence with respect to two distinct criminal

episodes.    We affirm.

                   Indictment No. ATL-03-03-0501

       In August 2004, following a jury trial, defendant was

convicted of third degree conspiracy to distribute cocaine,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3).    The judge imposed a

four-year term.   On direct appeal, we affirmed defendant's

                            State v. Gary Williams, No. A-784-04T4
conviction and sentence.

(App. Div. July 24, 2006), certif. denied, 
188 N.J. 492 (2006).

       The facts are fully set forth in our earlier decision.     The

proofs showed that Atlantic City Police Detective Alexis Smith

was working on a narcotics investigation in an undercover

capacity.    On January 23, 2003, she arranged to pick up Danielle

Foster.    Smith asked Foster to purchase cocaine for her.      Foster

agreed to do so but demanded $100 for the drugs, and $30 for

herself.

       Foster and Smith drove to the Flamingo Motel.   There,

Foster exited the car in order to meet her source.     After a few

minutes, Foster returned and said that Jakeem Bright did not

have any more cocaine at that location.    Smith and Foster drove

                                       Foster then got out of the
to a different location and parked.

        When she returned to the car, she handed over to Smith a
car.

plastic bag containing a white rocky substance that tests proved



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to be cocaine.     Foster was not placed under arrest at that time

in order not to jeopardize Smith's undercover status.

    Other units had placed the Flamingo Motel under

surveillance.    Detective Tom Gurcione videotaped events at the

motel that morning.    He testified that he saw Foster arrive and

enter the motel.    After a short time, she left with Jakeem

Bright and a woman later identified as Nakia Shanks.       Bright and

Shanks got into a dark-colored Ford Explorer and drove away.

    Detective Ronald DiGiovanni, who was in charge of this

investigation, directed the police units to follow the Explorer.

They did so and observed Bright meet with defendant, who was

driving a black Lincoln.    Bright and Shanks then drove to where

Foster and Smith were waiting.    Foster received the cocaine.

She then delivered the cocaine to Smith.       The surveillance units

attempted to follow defendant, but he took off at a high rate of

speed.

    Shanks and Bright testified at defendant's trial.       She and

Bright had been indicted along with defendant.      Both entered

negotiated guilty pleas.    By the time of defendant's trial,

Bright had served his sentence.       Shanks entered a negotiated

plea of guilty the day before defendant's trial.




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                                  3

    Shanks testified for the State.       She had driven Bright that

morning to meet with defendant to buy the cocaine that was sold

to Foster.

    Bright testified for the defense.       He agreed that he had

met with defendant that morning.      He testified, however, that

they met because defendant had earlier asked him to borrow $200

for supplies for his daughter's birthday party.       Bright said he

was only able to give defendant $100 because he needed the

balance to replenish his stock.       Defendant corroborated this

testimony.

                  Indictment No. ATL-03-06-1048

    In June 2006, defendant pleaded guilty to unrelated charges

of first degree possession of CDS with intent to distribute,

N.J.S.A. 2C:35-5a(1) and -5b(1); two counts of second degree

eluding a police officer, N.J.S.A. 2C:29-2b; and third degree

possession of a handgun, N.J.S.A. 2C:39-5b.       The State agreed to

dismiss related charges and recommend concurrent custodial terms

not to exceed twelve years with a seventy-month parole

disqualifier to run consecutive to the sentence on conspiracy.

The judge imposed the recommended sentence.       At the plea

hearing, defendant admitted that on February 23, 2003, he

possessed more than five ounces of cocaine with the intent to

distribute it.   On March 12, 2003, defendant was operating a



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                                  4

vehicle, which the police attempted to stop.     Defendant was in

possession of a gun.    Upon realizing that police officers were

trying to stop him, he tried to get away from them by driving

his vehicle at a high rate of speed in a reckless manner.       We

affirmed the convictions on direct appeal.    State v. Gary

Williams, No. A-2180-04T4 (App. Div. June 19, 2006), certif.

denied, 
190 N.J. 392 (2007).

                            PCR Petition

    In February 2007, defendant filed pro se a first PCR

petition.    Counsel was assigned to represent defendant on the

petition and a supplemental brief was filed, raising claims of

ineffective assistance of trial counsel.     Specifically,

defendant alleged that trial counsel failed to file a motion

that the verdict was against the weight of the evidence.      In

addition, defendant argued that his petition was not barred by

operation of Rules 3:22-4, 3:22-5 or 3:22-12.     Defendant also

contended that the court should have directed that the base term

of the conspiracy conviction be reduced from sixteen years to

the presumptive fifteen years with a five-year parole

ineligibility term.    The judge denied the petition, finding that

it was procedurally barred.

    On appeal, defendant contends:

            THE COURT ERRED IN DENYING [PCR] WITHOUT
            CONDUCTING A FULL EVIDENTIARY HEARING ON THE


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                                 5

           ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL
           BECAUSE THE DEFENDANT MADE A PRIMA FACIE
           SHOWING   THAT  TRIAL   COUNSEL'S DEFICIENT
           PERFORMANCE AT TRIAL SATISFIED BOTH PRONGS
           OF THE STRICKLAND/FRITZ TEST.

           (A) TRIAL COUNSEL'S FAILURE TO GIVE AN
           OPENING STATEMENT; TRIAL COUNSEL'S FAILURE
           TO ARGUE EVIDENTIARY ISSUES AT SIDEBAR;
           TRIAL   COUNSEL'S   FAILURE    TO   OBJECT   TO
           IMPROPER    WITNESS     BOLSTERING    BY    THE
           PROSECUTOR;   TRIAL   COUNSEL'S    FAILURE   TO
           OBJECT TO TESTIMONY THAT THE DEFENDANT WAS
           IN JAIL; TRIAL COUNSEL'S FAILURE TO SECURE
           APPROPRIATE    JURY     INSTRUCTIONS;     TRIAL
           COUNSEL'S FAILURE TO MAKE APPROPRIATE TRIAL
           AND   POST-VERDICT     MOTIONS;    AND    TRIAL
           COUNSEL'S   FAILURE    TO   ARGUE    MITIGATING
           FACTORS AT SENTENCING; RESULTED IN A TRIAL
           THAT DID NOT PRODUCE A JUST RESULT.

           (B) TRIAL COUNSEL'S DEFICIENT      PERFORMANCE
           PREJUDICED THE DEFENDANT.

           (C) UNDER R. 3:22-2 CRITERIA, THE DEFENDANT
           WAS ENTITLED TO A FULL EVIDENTIARY HEARING
           IN [PCR].

           DEFENDANT REASSERTS ALL OTHER ISSUES RAISED
           IN HIS PRO SE BRIEF IN SUPPORT OF [PCR] AND
           IN PCR COUNSEL'S BRIEF IN SUPPORT OF [PCR].

     We agree with the judge that this PCR petition is barred by

operation of Rules 3:22-4, 3:22-5 and 3:22-12.    Moreover,

defendant has not established either prong of the Strickland v.

Washington1 standard for determining ineffective assistance of

counsel.   This standard was adopted by the New Jersey Supreme


1
  
466 U.S. 687, 685, 
104 S. Ct. 2052, 2064, 
80 L. Ed. 2d 674, 693
(1984).



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                                 6

Court in State v. Fritz.2     We disagree that the judge should have

granted an evidentiary hearing.        Defendant has failed to meet

the threshold for an evidentiary hearing.        When issues of

defective performance of counsel are raised that involve

disputed facts outside the record, the appropriate procedure for

their resolution is to hold a hearing, if a prima facie showing

of remediable ineffective assistance of counsel is made.          State

v. Preciose, 
129 N.J. 451, 462-64 (1992).

       Here, there has been no such showing.     Moreover, the

alleged disputed performance by counsel can be scrutinized based

on the trial record.

       Affirmed.




2
    
105 N.J. 42, 58 (1987).



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