STATE OF NEW JERSEY v. WILLIAM PITTMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5217-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM PITTMAN,

Defendant-Appellant.

___________________________

November 16, 2011

Submitted October 17, 2011 - Decided

Before Judges Grall and Alvarez.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 03-08-1091.

Joseph E. Krakora, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Brian D. Gillet, Assistant Prosecutor,

of counsel; Jason Seidman, on the brief).

PER CURIAM

A jury found defendant William Pittman guilty of escape, N.J.S.A. 2C:29-5, and the trial court sentenced him to a four-year term of imprisonment. On direct appeal we affirmed his conviction, and the Supreme Court denied his petition for certification. State v. Pittman, No. A-6598-04 (App. Div. May 15, 2007), certif. denied, 192 N.J. 480 (2007). Defendant now appeals from the denial of his petition for post-conviction relief.

Defendant's conviction was based on the testimony of officers who were assigned to transport him from the Edison Police Station to the Middlesex County Adult Correction Center where he was to be held until posting of bail. Although defendant was handcuffed during the trip, he managed to get his back against the rear door and move its handle. The officer who was driving stopped the car, and as defendant was about to step out of the car, the officers managed to restrain him. With one pushing and the other pulling, the officers got defendant back into the car and transported him to the Correction Center.

Faced with the officers' account of the incident, defense counsel urged the jury to conclude that the police concocted the charges on which defendant was being held and the story about his escape. At the close of the State's case, the judge advised defendant that if he elected to testify, the State would not be permitted to cross-examine about his prior convictions but could cross-examine him about his testimony. The trial judge also explained that although defense counsel had advised him not to testify, the ultimate decision was up to him. Acknowledging that he understood, defendant advised the judge that he did not want additional time to speak to his attorney and said "[he] did not wish to take the stand." The judge asked, "You wish not to take the stand?" Defendant replied "Yes, ma'am."

On direct appeal, we found no merit to defendant's claim that the admission of evidence suggesting defendant's commission of prior crimes deprived him of a fair trial. We also concluded that defendant's right to a fair trial was not implicated by any error in the jury instruction on the defense of "legal irregularity" because there was no factual foundation for a charge on that defense.

On appeal from the denial of his petition for post-conviction relief, defendant's attorney presents the following issues:

I. THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

[A.] THE DEFENDANT FAILED TO RECEIVE

ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S DECISION TO PRESENT THE DEFENSE OF LEGAL IRREGULARITY AT TRIAL WHICH NECESSARILY PRECLUDED ANY CHANCE THE DEFENDANT WOULD BE EXONERATED.

[B.] THE DEFENDANT FAILED TO RECEIVE

ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF HIS FAILURE TO COMPREHENSIVELY DISCUSS ALL RELEVANT RAMIFICATIONS OF TESTIFYING WITH HIM, WHICH ULTIMATELY RESULTED IN THE DEFENDANT FAILING TO TESTIFY AND PRESENT CRUCIAL INFORMATION TO THE JURY.

The governing legal standards are clear. In order to obtain relief from a conviction based upon ineffective assistance of counsel, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). Stated differently, "a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would" have been different but for counsel's error. State v. Allegro, 193 N.J. 352, 366 (2008). In recognition of the wide range of competent trial strategies, courts are directed to apply a heavy measure of deference in determining whether a defendant received adequate representation. Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; State v. Chew, 179 N.J. 186, 205 (2004).

Judge Nieves did not preside at defendant's trial, but before he addressed defendant's petition he conducted an evidentiary hearing to address questions of fact that could not be resolved without additional testimony. Defendant and his trial attorney testified at that hearing.

Trial counsel explained the theory of the defense, which was that the police had engaged in a continuing pattern of misconduct with defendant including fabrication of the charges on which defendant was held on the date of the alleged escape and the officers' account of his escape from the police car.

Defendant testified that despite his wishes, his trial counsel prevented him from testifying and challenging the officers' account of the incident. He further contended that his lawyer's advice was poor given the judge's ruling on his prior convictions. With little success, the judge attempted to elicit from defendant additional testimony about what he would have said if he had testified before the jury.

Judge Nieves found that defense counsel had a trial strategy "to paint a picture for the jury that defendant was targeted by police in their initial detention of [defendant] and that this escape charge was a fabrication or embellishment of what actually happened." He further determined that this strategy was reasonable and could have led the jurors to discredit the officers and acquit defendant. Judge Nieves also considered defendant's claim of prejudice attributable to his trial counsel's strategy, which defendant alleged was inherent in a discussion of the circumstances that led to his arrest and confinement prior to this incident. On that claim, Judge Nieves noted, correctly, that this court had determined defendant was not prejudiced by the introduction of that evidence and further found that defendant's prior contact with the police was a fact obvious to the jurors in this prosecution for escape.

Based on defendant's colloquy with the trial judge about his decision not to testify at trial, Judge Nieves rejected defendant's claim that his attorney forced his decision to refrain from testifying without giving adequate advice. After considering defendant's arguments on appeal, the record developed at trial and during the evidentiary hearing on his petition, and Judge Nieves' decision, we affirm substantially for the reasons stated in his written opinion of April 8, 2009 that we have summarized above. The judge's findings are supported by substantial credible evidence in the record, and his determinations are fully consistent with the controlling law. The arguments presented are without sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.