STATE OF NEW JERSEY v. PIERRE BINOT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1527-07T41527-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PIERRE BINOT,

Defendant-Appellant.

_______________________________________________________

 

Submitted March 3, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-12-1623.

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

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel; Thomas Cannavo, Senior Assistant County Prosecutor, on the brief).

PER CURIAM

In this appeal, we consider defendant's contention that he was erroneously denied post-conviction relief (PCR) based on the allegation he was denied the effective assistance of counsel when tried and convicted of, among other things, causing a drug-induced death, a first-degree offense, N.J.S.A. 2C:35-9. After careful review, we conclude the PCR judge correctly denied relief and affirm.

In affirming the judgment of conviction on direct appeal, we outlined the facts and circumstances that led to the indictment and conviction of defendant for bringing about the death of John Spampanato on April 21, 2001. State v. Binot, No. A-2645-02T3 (App. Div. September 30, 2004) (slip op. at 3-7). In rejecting defendant's arguments, we concluded that the evidence of defendant's guilt was overwhelming. Id. at 11. We did not then consider, however, the argument that defendant was denied the effective assistance of counsel, leaving that contention for a future PCR petition. Id. at 3 (citing State v. Preciose, 129 N.J. 451, 460 (1992)).

Defendant thereafter filed a PCR petition. Without conducting an evidentiary hearing, the PCR judge denied relief for reasons set forth in his thorough opinion. Defendant has appealed the order denying relief, presenting the following arguments for our consideration:

I. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO REMEMBER THAT HE HAD BEEN GIVEN A COPY OF MS. HAMMARY'S INCOME TAX RETURN, AND TRIAL COUNSEL'S FAILURE TO RETAIN A FORENSIC EXPERT TO CONTEST DR. PARK'S OPINION, CONSTITUTE PRIMA FACIE INEFFECTIVE ASSIS-TANCE OF COUNSEL.

A. TRIAL COUNSEL'S DEFICIENT PERFORM-ANCE SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ[] TEST.

B. TRIAL COUNSEL'S DEFICIENT PERFORM-ANCE SATISFIED THE SECOND PRONG OF THE STRICKLAN[D]/FRITZ TEST.

II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW HEARING BECAUSE POST-CONVICTION RELIEF COUNSEL WAS INEFFECTIVE.

III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITU-TION.

IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

We find these arguments to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

In his PCR petition, defendant alleged, among other things, that his attorney erred by forgetting he possessed a document supportive of a defense witness's testimony and by failing to retain a toxicology expert to rebut the State's proofs regarding the cause of death. When a defendant claims a deprivation of the effective assistance of counsel, courts apply the following test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires show-ing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

This same two-prong test is applied when considering whether an individual has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, supra, 105 N.J. at 58.

In essence, the first prong of the Strickland/Fritz test requires a determination of whether counsel's performance on these matters fell below "the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970). The second prong requires defendant's showing of "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.

Here, defendant first complains of the fact that the prosecutor cross-examined Tyriece Hammary regarding the source of $2808 in cash found in defendant's apartment. Hammary asserted the cash was part of a tax refund she had obtained; the State insinuated the large amount of cash was evidence of defendant's drug dealing. In an attempt to disparage Hammary's testimony, the prosecutor asked about her failure to produce a copy of the tax return. Hammary said she had provided it to defense counsel, who did not immediately make the document available; in a sidebar a short while later, defense counsel indicated he had forgotten Hammary had given it to him. The tax return was located and shown to Hammary by defense counsel during her redirect examination the next day. Defendant now argues Hammary's testimony was made to appear unworthy of credit because the tax return only surfaced later. Obviously, counsel's failure to immediately produce the tax return was the result of an oversight, but we cannot adopt defendant's contention that this was the type of serious error required by Strickland/Fritz because the document was shown to Hammary while she was still on the witness stand. Any harm resulting from counsel's failure to produce it earlier was, at best, harmless.

We also find no merit in the argument that defense counsel should have retained a toxicology expert to refute the State's contention that heroin sold by defendant to the victim was not the sole cause of death. The PCR judge, however, observed that defendant did not produce an expert's affidavit, certification or report that would demonstrate what an expert could say and how it would have aided the defense. Accordingly, defendant failed to sustain his burden in moving for post-conviction relief. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

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A-1527-07T4

March 17, 2010