STATE OF NEW JERSEY v. MICHAEL DERRICK

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL DERRICK, a/k/a

DERRICK BRENNON,

Defendant-Appellant.

______________________________________________________________

August 18, 2014

Submitted July 22, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-01-0105.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Thomas D. Carver, Jr., Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Derrick, who was convicted of second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree theft (shoplifting), N.J.S.A. 2C:20-11(b) (count two); and third-degree conspiracy to commit shoplifting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-11(b) (count three), appeals from the trial court order denying his petition for post-conviction relief (PCR). We affirm.

The pertinent facts culled from our unpublished opinion affirming defendant's conviction, State v. Derrick, A-4648-07 (App. Div. May 24, 2011), certif. denied, 208 N.J. 599 (2011), are as follows:

On October 7, 2006, at about 6:09 p.m., defendant and co-defendant (collectively, the perpetrators) entered a Target department store in South Plainfield with the intent to shoplift. The store's security guard, Joseph Williams, observed the perpetrators enter and move throughout the store through the store's video surveillance system in the camera video room.

. . . .

Williams stood near the exit where he observed the perpetrators walk down the store's main aisle toward the exit, with defendant pushing [a] filled shopping cart. As they approached, Williams entered the vestibule, standing between the perpetrators and the exit. After failing to pay for the merchandise in the shopping cart, defendant pushed the cart through the first set of exit doors into the vestibule with co-defendant following him approximately ten to fifteen feet behind. When defendant entered the vestibule, Williams approached defendant, identified himself as the store security officer, and grabbed defendant from behind. Defendant shoved Williams aside and proceeded to exit through the second set of doors. Williams again attempted to stop defendant from exiting the store with the unpaid merchandise, but backed away after seeing defendant clutch his hand in a fist . . . Co-defendant then grabbed the cart and pushed it into the parking lot, passing Williams. Defendant followed her in flight. Pursuant to store policy, Williams stopped pursuit of the perpetrators and instead walked outside to identify their vehicle. As Williams continued into the parking lot toward the parked cars, defendant turned around and "doubled back" toward Williams. Williams halted, believing defendant might strike him.

[Id. at 4-6]

Defendant appealed, challenging his conviction and the sentence imposed. He raised the following arguments:

POINT I.

THE COURT ERRED IN ITS JURY CHARGE FOR SECOND-DEGREE ROBBERY IN

A. FAILING TO INCLUDE INSTRUCTION AND CASE-SPECIFIC EXAMPLE THAT RECKLESSNESS DOES NOT MEET THRESHOLD FOR INTENTIONAL OR PURPOSEFUL BEHAVIOR FOR SECOND-DEGREE ROBBERY (NOT RAISED BELOW).

B. FAILING TO INCLUDE INSTRUCTION ON SELF-DEFENSE NON-DEADLY FORCE (NOT RAISED BELOW).

POINT II.

THE COURT ERRED IN ITS ACCOMPLICE-LIABILITY CHARGE AS IT FAILED TO EXPLAIN HOW DEFENDANT COULD BE GUILTY OF THE THEFT OR CONSPIRACY OF THEFT YET NOT BE AN ACCOMPLICE [*3] TO THE ROBBERY AND FAILED TO PUT THE CHARGE INTO THE CONTEXT OF THE FACTS (NOT RAISED BELOW).

POINT III.

BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE RETAIL VALUE OF THE MERCHANDISE TAKEN WAS GREATER THAN 500 DOLLARS, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A DIRECTED VERDICT AS TO THIRD-DEGREE THEFT.

POINT IV.

BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE RETAIL VALUE OF THE MERCHANDISE TAKEN WAS GREATER THAN 500 DOLLARS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT SHOULD BE GRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE.

POINT V.

THE STILL PHOTOS ADMITTED TO ESTABLISH FORCE OR THREAT OF FORCE SHOULD NOT HAVE BEEN ADMITTED BECAUSE THEIR PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE, CONFUSION, AND MISLEADING THE JURY.

POINT VI.

THE GRANTING OF THE STATE'S REQUEST FOR A FLIGHT CHARGE AS EVIDENCE OF DEFENDANT'S GUILT AND THE WORDING OF THE FLIGHT CHARGE PREJUDICED THE DEFENDANT AND DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

POINT VII.

DEFENDANT'S SENTENCE WAS EXCESSIVE.

We affirmed defendant's conviction and sentence, but remanded for entry of a corrected judgment of conviction to reflect that defendant was convicted on count three of third-degree conspiracy to commit shoplifting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-11(b). Derrick, supra,, slip op. at 14. The Supreme Court thereafter denied defendant's petition for certification. Derrick, supra, 208 N.J. at 599.

Defendant filed a timely pro se PCR petition in which he alleged ineffective assistance of counsel, trial errors, and prosecutorial misconduct. Assigned counsel filed a supplemental brief which argued trial counsel's representation was ineffective because counsel failed to (1) communicate with defendant, (2) investigate and pursue all defenses, (3) raise issues concerning identification, and (4) object at trial to the robbery charge or challenge the jury verdict after trial. Following oral argument, the judge denied the petition in its entirety. This appeal followed.

On appeal, defendant raises the following issues:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post-Conviction Relief.

B. The Defendant Did Not Receive Adequate Legal Representation From Trial Counsel as a Result of Trial Counsel's Failure to Make a Motion For New Trial on the Basis that the Jury's Verdict Finding the Defendant Guilty of Robbery Arising Out of Count I Was Against the Weight of the Evidence.

II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SINCE HE DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE ON APPEAL AN ISSUE THAT THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF ROBBERY HAD BEEN AGAINST THE WEIGHT OF THE EVIDENCE.

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 (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. R. 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 genesis of defendant's petition was our conclusion in the direct appeal that trial counsel's failure to challenge the court's jury instructions on robbery and accomplice liability constituted a waiver to object to those instructions on appeal. Derrick, supra, slip op. at 8. Nevertheless, upon our review of the entire charge, we found the jury instructions were free of any error and were "neither ambiguous nor misleading, and properly informed the jury of the appropriate principles of law." Id. at 9.

In light of our recognition of trial counsel's failure to object to the charge, defendant on PCR urged the trial court to review the jury charges anew under the plain error rule, Rule 2:10-2, and to consider trial counsel's failure to move for a new trial. The State contended defendant was attempting to relitigate the issues raised and addressed on direct appeal.

The PCR judge rejected defendant's arguments, and noted that, while trial counsel did not object to the charge, we had reviewed the instructions under the plain error rule and found no error. The PCR judge thus correctly found that the issue had been raised and decided in the direct appeal. The judge also found that, even if counsel had objected to the charge, the objection would have lacked merit. As we noted in the direct appeal, the charge was not ambiguous or misleading and properly informed the jury of the applicable legal principles.

The PCR judge also correctly disposed of defendant's other claims of ineffective assistance of counsel. The judge noted that defendant claimed that his counsel did not conduct a full investigation of the facts and did not speak to him sufficiently so he could be involved in his own defense. The judge pointed out that there was no evidence in the record to support these claim and defendant had not presented any extrinsic evidence supporting these allegations. The judge correctly found that defendant's claims were too vague, conclusory and speculative to support a claim of ineffective assistance of counsel. Defendant's arguments to the contrary lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Defendant has failed to provide any factual support for his "bald assertions" of ineffective assistance of counsel. Because he has failed to show his attorney's performance was deficient or resulted in prejudice, defendant failed to present a prima facie showing that would warrant an evidentiary hearing. R. 3:22-10(c); Preciose, supra, 129 N.J. at 462-64.

Affirmed.