STATE OF NEW JERSEY v. PAUL BEATTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL BEATTY,

Defendant-Appellant.

________________________________

July 24, 2013

Submitted July 16, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 05-11-2471.

Paul Beatty, appellant pro se.

Christopher J. Gramiccioni, Acting Monmouth

County Prosecutor, attorney for respondent

(Mary R. Juliano, Special Deputy Attorney

General/Acting Assistant Prosecutor, of counsel;

Matthew Lynch, Legal Assistant, on the brief).

PER CURIAM

Defendant Paul Beatty appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

We briefly summarize the relevant procedural history and the facts based on the record before us.

Defendant had been employed at the Monmouth Park Racetrack where he became acquainted with J.W., one of the female trainers. Defendant began to stalk J.W. by sending her letters, voicemails, appearing at her home in South Carolina, tracking her movements, and by contacting a South Carolina police department to report that she was missing or had been kidnapped. Defendant was terminated from his employment and when a security guard attempted to prevent him from approaching J.W., defendant attempted to drive his vehicle over the guard.

Defendant was indicted on November 16, 2005, under Indictment No. 05-11-2471, on charges of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count I), and fourth-degree stalking, N.J.S.A. 2C:12-10 (Count II).

On May 16, 2007, as part of a negotiated plea agreement, defendant pled guilty to Count II and the State dismissed Count I. Defendant agreed that he was guilty of stalking and that he had voluntarily entered the plea. Defendant was sentenced to one year probation. He was also ordered to pay penalties, to continue to participate in psychological counseling, to take his medications, and to have no contact with the victim.

On September 25, 2009, defendant filed a petition for PCR claiming that his counsel had been ineffective because he failed to file a motion to dismiss the indictment, in that instead of the victim's testimony, the grand jury had only heard the testimony of a police officer who was familiar with the matter. On July 11, 2011, the court conducted a non-evidentiary PCR hearing and heard oral argument. The PCR judge denied defendant's petition for PCR. It is from that order that defendant appeals.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test by establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The State's burden of proof to the grand jury is only to present "some evidence" of each element of the offense. State v. Bennett, 194 N.J. Super. 231, 234 (App. Div. 1984), certif. denied, 101 N.J. 224 (1985). In fact, an indictment may be considered sufficient even if only hearsay evidence was presented. Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956). Every reasonable inference is to be given to the State when determining the sufficiency of the evidence to sustain the indictment. State v. Schenkolewski, 301 N.J. Super. 115, 137-38 (App. Div.), certif. denied, 151 N.J. 77 (1997).

We conclude from our review of the record that defendant failed to make a prima facie showing of ineffectiveness within the Strickland/Fritz test because the fact that J.W. did not testify before the grand jury is not a per se reason for the indictment to have been dismissed. The hearsay evidence of the police officer was sufficient to support the indictment. Moreover, even if the court had dismissed the indictment because only the officer testified, the State could have offered the testimony of the victim and re-indicted defendant, because dismissal of an indictment does not foreclose the State from procuring a new indictment. See, e.g., State v. Jones, 183 N.J. Super. 172, 178 (App. Div. 1992). As such defendant has failed to make a prima facie showing of ineffective assistance of counsel within the Strickland/Fritz test. Accordingly, we agree that the PCR judge correctly denied defendant's petition.