STATE OF NEW JERSEY v. KARL D. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0779-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KARL D. WILLIAMS,1

Defendant-Appellant.

________________________________________________

March 28, 2014

Submitted February 10, 2014 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-985.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Karl D. Williams appeals from the June 27, 2012 order of the Law Division denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

I.

On January 1, 2006, at approximately 10:30 p.m., Octavio Pena was walking home from a convenience store in Belmar after buying bubble gum. While talking on the phone, he passed two black men. He paid no attention to them until the shorter of the two, later identified as defendant, grabbed him from behind and said, "Shut up, give me your chain." Pena was wearing a thick gold chain and defendant tried to grab him, but Pena pushed him away and ran toward his house a short distance away on 14th Avenue. Defendant and the taller individual pursued Pena. When Pena reached his front porch, defendant began to fight him. Pena banged on his front door and when his roommates turned the lights on, the taller individual who was with defendant ran away. Defendant continued fighting with Pena until Pena's three roommates came to his aid. Pena told his friends that defendant was trying to take his chain. Two of the roommates held defendant while the third called 911.

Belmar police officer Darian Vitello responded to the call. When he arrived at Pena's house, another officer had already separated defendant from Pena and his roommates. Vitello called a translator so he could interview Pena, who did not speak English. Vitello observed marks around Pena's neck, caused when defendant tried to grab his chain. Vitello arrested defendant and later took photos of Pena's injuries.

A Monmouth County grand jury returned an indictment charging defendant with one count of second-degree robbery, N.J.S.A. 2C:15-1. During defendant's jury trial, the State called Pena, Vitello, and Patricia Calton, who lived across the street from Pena. Calton testified that on January 1, 2006, she and her fiancée were watching television when they heard a loud commotion, including yelling and profanities. She went out to her back deck, which fronts onto 14th Avenue, and observed a black man yell at a Hispanic man, "Give me your fucking money, you spic." Calton observed the black man grab the Hispanic around the neck. She called 911 and watched until the police arrived.

Defendant called no witnesses. The jury deliberated for a little more than one hour before returning a verdict of guilty. On April 20, 2007, the trial court sentenced defendant to an extended term of fifteen years with an eighty-five percent period of parole ineligibility.

Defendant appealed his conviction, challenging the jury instructions and the length of his sentence. The portion of the jury instructions challenged by defendant was determined to be a transcription error and did not warrant our intervention. State v. Williams, No. A-1209-07 (App. Div. Apr. 14, 2009) (slip op. at 4). We affirmed and the Supreme Court denied defendant's petition for certification. 200 N.J. 209 (2009).

Defendant initially filed a pro se petition for PCR. After the appointment of counsel, supplemental briefs and certifications were submitted. Before argument was heard on defendant's petition, he sought Patricia Calton's telephone records from January 1, 2006, to determine when she called 911. The PCR court denied the motion, finding that her call to the police was fully documented by police records and no relevant evidence could be gleaned from her phone records.

The court heard oral argument and denied the PCR petition without a hearing. On appeal, defendant raises the following arguments:

POINT ONE

the trial judge erroneously denied defendant's petition for post-conviction relief.

a. the jury charge issues.

b. ineffective assistance of appellate counsel.

c. failure to investigate.

d. counsel's failure to communicate.

e. defendant was wrongfully denied access to the telephone records of patricia calton.

II.

"Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). A jury verdict that has been upheld on appeal "should not be disturbed except for the clearest of reasons." State v. Ways, 180 N.J. 171, 187 (2004). Therefore, at a PCR hearing, the burden is on the petitioner to establish his right to "relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992).

Where a defendant claims ineffective assistance of counsel, the test to be applied is well settled. Our Supreme Court has adopted the two-part test for ineffective assistance of counsel established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in State v. Fritz, 105 N.J. 42 (1987), as follows:

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 showing 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.

[Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

The Fritz Court referred to the first prong of the Strickland test as "the performance prong." Ibid. To satisfy that prong "a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J. 123, 147 (2011) (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). A reviewing court "'must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" State v. Echols, 199 N.J. 344, 358 (2009) (citing Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

The second prong of the Strickland test provides that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52. A defendant must demonstrate a "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

The critical inquiry under the Strickland/Fritz test is "'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" State v. Perry, 124 N.J. 128, 147 (1991) (quoting Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93).

Defendant claims that his trial counsel's failure to request that the jury be charged on attempted theft as it relates to robbery and simple assault as a lesser included offense of robbery rendered his assistance ineffective. Defendant levels the same accusation against his appellate counsel for failing to raise the issue on appeal. As this issue was not raised in the trial court, it is before us under the plain error rule. See R. 2:10-2.

In a thorough and comprehensive written decision, Judge John T. Mullaney, Jr., rejected these arguments, finding ample evidence in the record to support each element of the robbery charge, and "no testimony elicited at trial which would have supported petitioner's intent to commit a theft which had not yet ripened into an attempt and, therefore, no testimony which would warrant an attempted robbery jury charge."

Judge Mullaney explained why he rejected defendant's argument that the trial court should have charged attempted theft:

The testimony and evidence demonstrated that defendant started a physical altercation with the victim for the purpose of taking his gold chain and money. While grabbing for the chain, defendant verbally demanded the victim's money. The only reason defendant was unsuccessful was because the victim was able to fight off the defendant and subdue him.

Defendant claims that he was only fighting with Pena and had no intent to steal his chain or his money and was entitled to jury charges of attempted theft and simple assault.

"Our criminal attempt statute generally serves to punish one who acts with the level of culpability required to commit a crime regardless of whether the intended result occurs." State v. Robinson, 136 N.J. 476, 483-84 (1994).

In pertinent part, N.J.S.A. 2C:5-1, provides:

a. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

(3) Purposely does . . . anything which, under the circumstances as a reasonable person would believe them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

b. Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.

[N.J.S.A. 2C:5-1.]

Defendant relies on State v. Gonzalez, 318 N.J. Super. 527 (App. Div.), certif. denied, 161 N.J. 148 (1999), as support for his claim that the failure to charge attempt was plain error.

The defendant in Gonzalez was convicted of robbery and felony murder. Id. at 528. To sustain the felony murder conviction, the State was required to show that the victim was killed as a result of the defendant's attempted robbery of the victim, but the State was unable to offer any evidence that the victim was ever robbed. Id. at 532-33. The defendant told the police that he intended to rob the victim but later recanted that statement. Id. at 531-32. Although the trial court charged purposeful and knowing conduct in conjunction with robbery under N.J.S.A. 2C:15-1, it failed to instruct as to attempt under N.J.S.A. 2C:5-1(a) and (b) and the required element of purposeful conduct. Id. at 536. We reversed, holding that the jury should have been instructed regarding attempt and that failure "to apprise the jury that the standard of culpability [for attempt] is purposeful conduct" constituted plain error. Id. at 536-37.

We find Gonzalez distinguishable. In that case, we determined that the defendant's actual conduct in the commission of the attempted robbery was "simply unknown." Id. at 534. There were several conflicting versions of the attempted robbery, and, based on the defendant's inculpatory statement, the defendant was arguably "attempting to commit a theft from the victim's person[]" when the defendant commenced his criminal conduct. Id. at 535. As theft is not a predicate offense for felony murder and because the defendant's actions were unknown and may not have constituted attempted robbery, we held that the failure to charge the jury with attempt constituted plain error. Id. at 536.

Here, the only two witnesses to the incident that testified at trial, Pena and Calton, provided compelling evidence that defendant intended and nearly succeeded in robbing Pena; nothing in their testimony provides a shred of support to defendant's claim that this was a simple assault.

"[A] defendant can be convicted of robbery, even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." State v. Farrad, 164 N.J. 247, 258 (2000). Although defendant did not succeed in removing Pena's chain, his conduct went well beyond mere preparation and was unequivocally a "substantial step" in the commission of the robbery. See ibid.

We are satisfied that the failure to instruct the jury as to attempt or simple assault was not error let alone plain error. The testimony of Pena and Calton coupled with the corroborating photographs of the injury to Pena's neck suffered while defendant was trying to snatch his chain established compelling evidence of defendant's guilt.

We find the remaining arguments raised by defendant lack sufficient merit to warrant further discussion beyond these brief comments. R. 2:11-3(e)(2).

Defendant's claims that his trial counsel failed to investigate and produce potential defense witnesses and did not adequately communicate with him are just the type of bald assertions we rejected in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. We conclude that defendant's assertions are woefully insufficient to support a prima facie case of ineffectiveness.

A

1 The trial transcripts and judgment of conviction refer to defendant to as "Carl." We employ "Karl," as it is used in defendant's notice of appeal and appears in his criminal history record.