STATE OF NEW JERSEY v. HAMID ABDUL-SHABAZZ

NOT FOR PUBLICATION WITHOUT THE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.

HAMID ABDUL-SHABAZZ,

Defendant-Appellant.

________________________________

November 21, 2013

Submitted: November 14, 2013 Decided:

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-01-0037.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Hamid Abdul-Shabazz appeals from the January 17, 2012 Law Division order, which denied his motion for a new trial and his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.

Following a trial, a jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault (as a lesser-included offense of attempted murder), N.J.S.A. 2C:12-1b(7); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. At sentencing, the judge merged various counts and imposed an aggregate eighteen-year term, subject to NERA, with a five-year period of parole supervision upon release. The jury also found the co-defendant, Anthony Cantey, guilty of second-degree robbery and hindering apprehension.

Defendant appealed his convictions and sentence and we affirmed in an unpublished opinion. State v. Abdul-Shabazz, No. A-0305-06 (App. Div. February 29, 2008). The Supreme Court denied defendant's petition for certification. State v. Abdul-Shabazz, 195 N.J. 523 (2008).

We begin by referencing the essential background facts as set forth in our earlier opinion. On May 3, 2003, the victim, Joseph Robinson left his home to go to Passaic County Community College, where he was enrolled as a student. State v. Abdul-Shabazz, supra, slip op. at 3. On the way to school, Robinson was accosted by two men, who he later identified as defendant and Cantey. Ibid. Cantey hit Robinson in the shoulder and "[a] struggle ensued." Ibid. Defendant and Cantey slapped Robinson and "tried to pull things from his pockets and take his backpack. Robinson tried to run, but defendant caught him and struck him in the face. Cantey then left; after which defendant pointed a handgun at Robinson, threatened him, laughed, and then left." Ibid.

Later that month, Robinson saw Cantey on the street and called the police, who arrested him. Id. at 3-4. In early June, Robinson saw defendant on the street and saw him enter a residence. Id. at 4. Robinson called the police, who entered the building and brought defendant outside, "where Robinson made a positive identification of defendant as one of his two attackers." Ibid.

On August 13, 2008, defendant filed a motion for a new trial and a petition for PCR. In support of his applications, defendant presented a certification from Cantey, who alleged defendant had not been involved in the robbery. He also submitted a certification from a friend named Anthony Allen. Allen alleged that, "sometime between the year 2004 and 2005," he drove Robinson and his mother to defendant's trial attorney's office because Robinson wanted to tell the attorney "he made a mistake when he identified [defendant] as a person that robbed him." Allen asserted that, after the group arrived at the office, the attorney refused to speak to them and they then returned home. Defendant's cousin, Craig Dooley, submitted a certification in which he stated he answered the door at the residence when defendant was arrested. Dooley asserted that the police did not have a warrant and he "did not give any consent for the police to enter the house."1

Judge Joseph A. Portelli conducted a three-day evidentiary hearing; listened to testimony from Cantey, Allen, and Dooley; found that none of defendant's witnesses were credible; and then denied defendant's motion for a new trial and his petition for PCR. In a lengthy oral opinion, Judge Portelli thoroughly explained the basis for his credibility determinations and made extensive factual findings on each of defendant's factual contentions.

The judge found that Cantey's claim that another individual, now deceased, was involved in the robbery, was "unworthy of belief." The judge noted that Cantey waited almost seven years to make this claim and that, in all that time, Cantey never told anyone, including his own attorney, that defendant was not a participant. In addition, the judge found there were "significant discrepancies" between Cantey's testimony at the hearing about the details of the robbery and the accounts he gave in two earlier written statements. Because Cantey's claims were not credible, Judge Portelli found that defendant was not entitled to a new trial on the basis of newly-discovered evidence.

With regard to his petition for PCR, defendant argued his trial attorney was ineffective because he refused to meet with Robinson and his mother when Allen brought them to the attorney's office. However, Judge Portelli found that Allen's testimony was "not worthy of belief." Allen could not give a consistent account of how he came to meet Robinson. Allen stated he did not know Robinson, but claimed that after defendant described Robinson, Allen "recognized" him because Allen's aunt, or his mother, dated Robinson's father. Allen could also not explain why Robinson would not simply go to the prosecutor's office or the police to recant his identification if, as Allen claimed, that was his intention. Allen's claim was also inconsistent with the fact that Robinson identified defendant at trial. Finally, the judge found Allen had no reasonable explanation for why Allen himself did not contact the attorney, other attorneys in the firm with whom he claimed he was friendly, the police, or the prosecutor with this information if it were true.

Based upon Dooley's testimony that he did not consent to the police entering the residence on the day of his arrest, defendant argued his trial counsel was ineffective because he failed to file a motion to suppress Robinson's identification of him as a product of an "illegal arrest." Judge Portelli rejected this argument, finding that Dooley conceded he opened the door for the police at the insistence of his aunt, who was outside with the police when they went to the residence to find defendant. The judge also found that a motion to suppress would not have been successful because "the police had more [than] ample reason to enter the home without a warrant. They, in effect, possessed exigent circumstances coupled with the consent given by Mr. Dooley."

Finally, prior to seeing defendant and Cantey on the street after the robbery, Robinson looked through a "computer database" of photographs at the police station. He was not able to identify the perpetrators from the photographs he observed. Because of his prior arrests, defendant believed his photograph was in the database and that Robinson failed to identify him when he saw it. Defendant argued his trial attorney was ineffective because he failed to make a motion to obtain all the photographs in the database so he could make this argument to the jury.

Judge Portelli rejected this argument, finding that defendant's attorney's "actions were done with skill and perseverance with respect to the identification issue." After reviewing the trial transcript, the judge found the attorney consistently raised the argument that Robinson had misidentified defendant and had specifically brought out, through cross-examination of a detective, that Robinson "could have looked at [defendant's] photo and not identified him[.]" In his summation, the attorney also argued that the State had "not presented any testimony to [the jury] to show that [defendant's] picture was not in the hundreds or - - for the thousands of any pictures that he looked at[.]" Thus, the judge found that defendant's counsel did not provide ineffective assistance.

This appeal followed and defendant raises the following contentions:

POINT I

DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED DUE TO THE CO-DEFENDANT EXCULPATING DEFENDANT.

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN THAT TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION.

POINT III

THE CUMULATIVE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED. (Not Raised Below).

In a pro se supplemental brief, defendant has raised the following contention:

POINT ONE

DEFENDANT WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THAT DEFENDANT'S ARREST WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THAT THE IDENTIFICATION WAS THE FRUIT OF THE ILLEGAL ARREST, THEREFORE THE CONVICTION SHOULD BE REVERSED.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Portelli in his comprehensive and well-reasoned oral opinion. We add the following brief comments.

Rule 3:20-1 provides that "[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." On appeal, a "trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Where, as here, the judge conducts an evidentiary hearing, we must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J. at 15).

Judge Portelli specifically found that Cantey's claim that defendant was not involved in the robbery was "unworthy of belief" and he carefully explained why he reached that determination. We defer to the judge's credibility findings. Based upon the judge's specific and detailed findings of fact concerning Cantey's lack of credibility, we cannot conclude that the judge erred in denying the motion for a new trial.

We also discern no basis for disturbing the judge's decision to deny defendant's petition for PCR. When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant failed to meet these standards. The judge found that Allen's allegation that defendant's trial counsel refused to speak to Robinson was "not worthy of belief." We again defer to the judge's credibility determination, which was thoroughly explained in his oral decision. The record also supports the judge's finding that Dooley opened the door for the police to admit them into the residence when they came to arrest defendant. Finally, the trial record does not support defendant's claim that his attorney neglected to argue that Robinson misidentified him. Therefore, Judge Portelli properly concluded that defendant failed to establish a prima facie claim of ineffective assistance of counsel.

1 Defendant also submitted a certification from James Selliken, who stated defendant was with him in a house on Gregory Street in Passaic at the time of the robbery. However, Selliken did not testify at the evidentiary hearing.