STATE OF NEW JERSEY v. JAMES PERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5310-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES PERRY,

Defendant-Appellant.

________________________________________

December 16, 2010

Submitted November 1, 2010 Decided

Before Judges Rodr guez and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-05-1022.

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

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant James Perry appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of third degree theft from a person, N.J.S.A. 2C:20-3. Judge Michael R. Connor granted the State's motion for extended term sentencing, and imposed a ten-year term with a five-year parole disqualifier. For defendant's disruptive and contumacious conduct at the sentencing hearing, the judge sentenced defendant on two counts of contempt of court to six months incarceration consecutive to the theft sentence and to each other. We affirmed on direct appeal. State v. Perry, No. A-0282-02T4 (App. Div. February 26, 2004), certif. denied, 180 N.J. 357 (2004).

On January 26, 2000, at the Tropicana Casino in Atlantic City, defendant bumped up against eighty-one-year-old Raymond Delfonzo and took his wallet. Casino surveillance cameras captured the incident.

Delfonzo and his companion, Lois Zorich, told a security guard at the casino that a tall black male wearing a wool cap and brown jacket had stolen Delfonzo's wallet. The surveillance camera film revealed the person later identified as defendant. Casino security retained still images of defendant taken from the footage, and detained defendant when he returned to the casino two months later. After receiving Miranda1 warnings, defendant gave a statement in which he acknowledged that he was the person shown in the footage, but denied taking Delfonzo's wallet.

New Jersey State Police Detective Sean Nelson Boero testified at trial about the surveillance footage, as well as the enhancement and slow-down process. Delfonzo did not testify at trial due to illness. Zorich also did not testify. Over defendant's objection, the judge admitted their statements. Defense counsel, however, obtained a Clawans2 adverse-inference charge based on Delfonzo and Zorich's nonappearance.

Defendant filed pro se a PCR petition contending that he received ineffective assistance of trial and appellate counsel. Assigned PCR counsel submitted a brief and a supplemental brief without certifications or affidavits from persons with knowledge of the relevant facts. The briefs argued that trial counsel was ineffective for failing to object to adding Detective Boero to the witness list on the first day of trial. Trial counsel also allegedly erred by not requesting "necessary discovery concerning [Delfonzo's] medical condition."

Judge Connor denied the petition without an evidentiary hearing. He found that defendant had not established a prima facie case of ineffective assistance of counsel or any other basis warranting relief from his conviction or sentence. The judge explained his findings:

The video was, needless to say, one of the keys to the case, so issues with respect to the video are important, but I hold that there was no ineffectiveness with respect to [c]ounsel's conduct. He objected, endeavored to keep it out, [but] was unsuccessful.

. . .

We had a pretty good fight over the Clawans issue, the non-appearance [sic] of the victim. There was an explanation given that the jury was charged by the Court as to permissible inferences which could be drawn and the I would hold that there was nothing wrong in [c]ounsel's conduct in allowing the jury to rely on what the Court instructed on that particular issue.

. . .

There's also [an] argument made that the defense counsel at trial was ineffective for failing to object to prosecutor bolstering. Well, what I hold was that was said was within a scope of allowable argument to be made during summation or otherwise as appropriate during the course of a trial.

. . .

It's alleged that [c]ounsel was ineffective for failing to address the reasons for non-appearance of the victim. I would just incorporate by reference the rulings which were made during the course of trial and [c]ounsel's conduct has to be understood in the context of that after the Court's ruling. And in any event, [counsel] was successful in getting a so-called partial Clawans charge.

. . .

With respect to Counsel's ineffectiveness for failing to make certain arguments in a motion for a new trial, the evidence was overwhelming and the jury clearly, in the Court's opinion, did the right thing. So, any missing arguments would not have altered the result.

Turning to the allegations of ineffectiveness of appellate counsel, it's alleged that appellate counsel should have raised all these various issues. I would incorporate, by reference, what I just said with respect to trial counsel and if the conclusion is and do I reach such a conclusion that trial counsel was adequate in his representation, then the same would apply to appellate counsel.

. . .

. . . [With respect to that] help-seeking, assistance-seeking statement made [by Delfonzo] to a security guard . . . .

. . . I would hold that there was no ineffectiveness of appellate counsel because had the argument been made, it wouldn't have succeeded under Buda . . . .3

Defendant contends:

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR [PCR] AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

1. Defendant Established At Least Prima Facie Evidence Of Ineffective Assistance Of Counsel.

2. At The Very Least, The Trial Court Erred In Rejecting Defendant's Ineffective Assistance Claims Without An Evidentiary Hearing In The Court Below.

After a careful review of the PCR record, we conclude that defendant has not shown the second prong of the Strickland v. Washington4 standard for determining ineffective assistance of counsel. When an appellant alleges defective performance of counsel premised on disputed facts outside the record, the appropriate procedure for their resolution is to hold a hearing if defendant has made a prima facie showing of remediable ineffectiveness. State v. Preciose, 129 N.J. 451, 460-61 (1992).

Here, defendant has not provided any evidence to support his allegations. Moreover, we can scrutinize trial counsel's performance based on the trial record. We therefore agree with Judge Connor's decision to deny an evidentiary hearing and the petition itself for substantially the reasons he expressed in his October 2, 2008 oral decision.

Defendant also contends in a pro se supplemental brief:

THE COURT DENIED DEFENDANT DUE PROCESS RIGHT TO HEAR A MOTION TO DISMISS INDICTMENT THAT WAS FILED TIMELY UNDER COURT RULES.

THE MOTION FILED IN STATE COURT FOR A NEW TRIAL CONCERN [SIC] DEFENDANT RIGHT TO CONFRONT HIS ACCUSER AND TO CHALLENGE THE EXPERT STATE TROOPER WITH REGARD TO HIS VIDEO EXAMINATION AND TESTIMONY.

THE COURT VIOLATED THE SENTENCE CODE WITH A CONSECUTIVE EXTENDED TERM OF TEN YEARS WHICH VIOLATED THE N.J. CRIMINAL CODE 2C:44-5(b) NEVER RECEIVED NOTICE OF INTENT BEFORE APPROVING AN EXTENDED TERM.

We determine that the first two contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Moreover, all three contentions are procedurally barred because they were adjudicated on direct appeal, Rule 3:22-5; or could have been raised on direct appeal. R. 3:22-4. On direct appeal, defendant contended that the judge erred by (a) "granting the State's motion to admit Delfonzo's out-of-court statement"; and (b) "sentencing defendant as the punishment was created for the criminal, rather than the crime." We conclude that Delfonzo's statement was properly admitted.

A

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 State v. Clawans, 38 N.J. 162 (1962).

3 State v. Buda, 195 N.J. 278 (2008).

4 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland).