STATE OF NEW JERSEY v. KAREEM LAMAR

NOT FOR PUBLICATION WITHOUT THE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.

KAREEM LAMAR,

Defendant-Appellant.

_____________________________________________

September 2, 2014

Submitted July 23, 2014 - Decided

Before Judges Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-1934.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Kareem Lamar, who was tried to a jury and found guilty of second-degree robbery, N.J.S.A. 2C:15-1(a)(1), appeals from the July 16, 2012 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

We cull pertinent facts from our unpublished opinion affirming defendant's conviction, State v. Lamar, No. A-5123-07 (App. Div. Mar. 4, 2011), certif. denied, 207 N.J. 228 (2011):

The robbery occurred in the afternoon of June 7, 2007 in the Hilton Casino in Atlantic City. The victim of the robbery was a casino cashier, Muhammed Ali, who was responsible for paying out jackpots, providing cash redemptions for vouchers and coupons, and handling various other transactions involving cash payoffs. Ali conducted these transactions through a window at the front of the booth in which he worked. He gained entry to the booth through a wooden door.

In response to a knock, Ali opened the door and saw defendant, who asked, "bathroom?" Ali told defendant the booth was not the bathroom. Defendant then pulled the door open, entered the booth, punched Ali, and said, "give me the money." Ali pushed an alarm button. Seeing Ali do this, defendant said, "I'm getting out of here," ran out of the booth, and left the area. Defendant, who was identified from a surveillance camera videotape of the incident wearing distinctive clothing, specifically a Philadelphia Seventy-Sixers jersey with the number six on it, was apprehended in another casino a few hours later.

In addition to the testimony of Ali, the State Police detective who investigated the robbery, and the casino employees who operated the casino surveillance cameras, the State introduced a composite videotape from the surveillance cameras that showed defendant's movements before, during and after the robbery.

Defendant took the stand in his own defense and admitted he entered the booth where Ali worked. However, defendant claimed that he entered the booth by mistake, thinking that it was a bathroom, and denied punching Ali or demanding that Ali give him money. Defendant testified that his only physical interaction with Ali occurred when Ali pushed him out of the booth.

[Lamar, supra, slip op. at 2-3.]

Defendant was sentenced to an extended term of eighteen years as a persistent felony offender, pursuant to N.J.S.A. 2C:44-3(a), subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction, raising the following arguments:

POINT ONE:

THE JUDGE GAVE AN INCOMPLETE ROBBERY CHARGE, WHICH MISLED THE JURY INTO BELIEVING THAT THE PROOFS REQUIRED TO ESTABLISH ATTEMPTED THEFT AS AN ELEMENT OF ROBBERY WERE LESS DEMANDING THAN THE PROOFS REQUIRED TO ESTABLISH ATTEMPTED THEFT AS A LESSER-INCLUDED OFFENSE OF ROBBERY, AND WHICH FAILED TO PROVIDE AN ADEQUATE ROADMAP FOR THE JURY TO DETERMINE WHETHER [DEFENDANT'S] USE OF FORCE OCCURRED DURING THE COMMISSION OF AN ATTEMPTED THEFT. (Not Raised Below).

POINT TWO:

IN ANSWERING ONE OF THE JURY'S QUESTIONS, THE JUDGE MISSTATED PART OF THE RECORD THAT WAS CRITICAL TO [DEFENDANT'S] DEFENSE. THIS ERROR WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT. (Not Raised Below).

POINT THREE:

THE 18-YEAR EXTENDED TERM SENTENCE THAT THE JUDGE IMPOSED WAS EXCESSIVE AND BASED ON INAPPROPRIATE FACTORS.

We affirmed defendant's conviction and sentence. Lamar, supra, slip op. at 9-10. Defendant then filed a timely pro se petition for PCR in which he alleged ineffective assistance of his trial counsel. After PCR counsel was appointed, additional briefs were submitted in support of defendant's petition. The PCR court heard oral argument and denied the petition and defendant's request for an evidentiary hearing.

On appeal, defendant presents the following arguments:

point i

the court erred in denying defendant's petition for post-conviction relief because defendant presented a primafaciecase that he was deprived of his constitutional rights to the effective assistance of appellatE counsel, due process of law, and a fair trial since appellatE counsel failed to argue that the defendant did not receive a fair trial due to his appearance before the jury in prison garb.

point ii

defendant is entitled to a remand because the pcr judge erred by not addressing all of defendant's ineffective assistance of counsel claims.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "'First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed

. . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.

A defendant is not entitled to an evidentiary hearing on his claims unless he presents a prima facie showing that there is a reasonable likelihood that he will satisfy these criteria; he cannot rely on bald assertions to do so. State v. Preciose, 129 N.J. 451, 462-63 (1992). The defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance" and the probability that it affected the jury's verdict. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, a defendant is procedurally barred from raising claims in a PCR petition that could have been raised on direct appeal, Rule 3:22-4, or that have been adjudicated in the underlying proceedings or on direct appeal, Rule 3:22-5.

The determination of whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. Preciose, supra, 129 N.J. at 462; see also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2014) ("An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record.").

The gravamen of defendant's ineffective assistance claim is the failure of his appellate counsel to argue that he was denied a fair trial because he appeared before the jury in a prison uniform.

The trial judge, who also heard defendant's PCR petition, addressed the clothing issue on the first day of jury selection. The judge confirmed that sheriff's officers provided defendant with a blue striped shirt and a choice of either black or blue pants for him to wear. Defendant refused to wear the clothes because he was not able to get a haircut. The court determined that the clothes offered to defendant were "acceptable" and that defendant had refused to wear them. The court announced that it would advise the jury that defendant's "prison garb" should not be used against him in any way, but continued its attempt to convince defendant to change his mind:

THE COURT: I've got to tell you, sir, that I can tell the jury all I want. When they see you in prison garb, I don't know what they're going to think.

THE DEFENDANT: Well, see me without a haircut, I don't know what they'll think.

THE COURT: If I were you, I would put those clothes on. Now, I'll give you one last chance to go put the clothes on and guess what? If you want to get a haircut, all we're going to do is pick a jury. That's it. If you want to get a haircut tonight, when you go back to the jail, you get a haircut. I don't care if you get a haircut, all right? I'm telling you that if I were you and if I were you on trial and I was looking at 20 years at 85% if convicted, because of your deplorable record, I would go put clothes on. I can only lead you to the water. I can't make you drink it.

Now, I'm giving you free advice. If I were you, I would go put those clothes on and then tonight, because all we're going to do today is pick a jury, tonight if you want somebody to clip your hair, you let them clip it. So that's what I would do if I were you, looking at 20 years.

The court's efforts were to no avail and defendant refused to even try the clothes on. When the jury panel arrived, the court gave them the following instruction:

First of all, let me make one thing perfectly clear to you. You see the Defendant, Mr. Lamar, there and he has on orange clothes that's normally associated with jail clothes. You're not to speculate or have any conjecture about why he has those clothes on and whether or not it has anything to do with this incident that you are going to hear about and most of all, you should not hold that against him in any way as to any inferences of guilt or innocence or anything like that. That would be inappropriate. I'm asking you to not speculate or not have any type of conjecture as to why he's dressed that way and it has nothing to do with the facts of this case and you have to decide this case based on what you see and hear in the courtroom.

After defendant's conviction, he raised the prison garb issue in a motion for new trial. The court found that defendant had been notified of the trial date six or eight weeks in advance and had ample opportunity to have his own clothes brought to court. The court also found that the clothing offered to defendant was "not in any way distasteful or disrespectful to a reasonably objective juror." Finally, the court determined that defendant's failure to obtain appropriate clothing and his refusal to wear the clothes offered to him was a delaying tactic1 done in an attempt "to do whatever he could do so as to cause a problem and not go to trial."

We note initially that defendant's claim could have been raised on direct appeal and he is therefore procedurally barred from seeking this relief in a PCR proceeding. R. 3:22-4(a)(1). Additionally, none of the exceptions to the Rule have been established here. See R. 3:22-4(a)(1) to (3). Therefore, defendant is precluded from raising an ineffective assistance claim with regard to the prison garb issue.

Even if we address the merits of defendant's claim, appellate counsel was not ineffective in failing to raise the prison garb issue on direct appeal. In State v. Herrera, 385 N.J. Super. 486 (App. Div. 2006), the defendant was offered civilian clothes to wear during trial but refused, claiming the clothes came from the "garbage trash." Id. at 494. We held that "the defendant has a right not to appear in civilian clothing that may appear distasteful or disrespectful to a reasonably objective juror[,]" but "a defendant cannot be allowed to reject any clothing that does not fit his taste and style." Id. at 498.

Consistent with the requirements of Herrera, the trial court examined the clothing offered to defendant and determined that the civilian clothes that defendant rejected were of reasonably suitable quality, cleanliness, and design. Thus, defendant made a "knowing, intelligent and voluntary waiver" of his right not to wear prison garb. Defendant's appellate counsel was not required to advance an argument that was lacking in merit. Because defendant has failed to show his attorney's performance was deficient or resulted in prejudice, he has not made a prima facie showing that would warrant an evidentiary hearing. See R. 3:22-10(c); Preciose, supra, 129 N.J. at 462-64.

We find the remainder of defendant's arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 The court also noted that defendant requested a new attorney on the first day of trial.