STATE OF NEW JERSEY v. SHARIFF MUHAMMAD

NOT FOR PUBLICATION WITHOUT THE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.

SHARIFF MUHAMMAD,1

Defendant-Appellant.

___________________________

June 17, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3590.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shariff Muhammad appeals from the February 13, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) following a remand evidentiary hearing. We affirm.

A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The charges stemmed from the stabbing death of Gerald Matthews on July 27, 2008. Defendant stabbed Matthews three times: in the right arm four inches from the top of the right shoulder and three inches deep, in the right lower chest that penetrated approximately six inches, and in the right upper back that penetrated approximately six inches.

Defendant fled from the crime scene. When the police apprehended him shortly thereafter, a knife with Matthews' DNA was found hidden in an umbrella in defendant's possession. An eyewitness identified defendant as the perpetrator shortly after the stabbing, and another eyewitness identified him the next day. Defendant confessed to the police and claimed that Matthews came toward him and he was just trying to protect himself. Neither of the eyewitnesses corroborated this claim.

Defendant was eligible for an extended-term sentence if convicted of murder based on his criminal record of ten indictable convictions, including one for homicide. He pled guilty to an amended charge of first-degree manslaughter, N.J.S.A. 2C:11-4a, in exchange for a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

At the plea hearing before Judge Peter J. Vazquez, defendant testified that he was selling drugs for Matthews, and the police seized $1000 and drugs belonging to Matthews when they arrested him for a violation of probation. On July 27, 2008, he encountered Matthews on the corner of Broad and Market Streets in Newark. He could have left the area without interacting with Matthews, but Matthews saw him. The two men had a discussion that escalated into an argument over Matthews' money. He stabbed Matthews two or three times when Matthews lunged at him. Defendant admitted that he knew Matthews was not armed and that he did not fear for his life during the stabbing. He claimed he stabbed Matthews because Matthews was "just a big guy and I didn't want nothing to happen to me."

Plea counsel had obtained information that Matthews was not a healthy man and may have been a drug addict. At sentencing, defendant apologized to Matthews' family and said to them, "I didn't know [Matthews'] situation. I didn't know he was a sick person . . . if I had known I would've walked away." In accordance with the plea agreement, Judge Vazquez sentenced defendant to a twenty-year term of imprisonment subject to NERA.

Defendant did not appeal. Instead, he filed a pro se PCR petition, arguing that plea counsel rendered ineffective assistance by failing to explore and argue self-defense. Judge Vazquez denied the petition without an evidentiary hearing, finding that defendant had no viable claim of self-defense, and thus, could not establish that plea counsel's performance was deficient.

Defendant appealed. We reversed and remanded for a hearing "to determine whether (1) plea counsel considered the defenses of self-defense and imperfect self-defense; (2) plea counsel investigated those defenses, and if not, the reason for not doing so; (3) defendant provided a sufficient factual basis for his plea; and (4) defendant was entitled to PCR." State v. Muhammad, No. A-0358-11 (App. Div. Nov. 20, 2012) (slip op. at 11).

Both defendant and plea counsel testified at the remand hearing. Plea counsel explained that he discussed self-defense and imperfect self-defense with defendant and reviewed numerous factors, including the State's proofs, defendant's criminal record, the medical examiner's report, and the potential sentence if defendant was convicted at trial. He also explained that because there was no corroborating evidence of self-defense or imperfect self-defense, defendant would have to testify, thus exposing himself to credibility problems based on the number of stab wounds, his confession, his flight from the scene, the discovery of the murder weapon in his possession, and his criminal record. Counsel testified that upon consideration of these factors, defendant ultimately decided his best course of action was to plead guilty to aggravated manslaughter.

In a February 13, 2013 written opinion, Judge Vazquez found plea counsel's testimony credible and defendant's testimony not credible. The judge made detailed factual findings and legal conclusions and concluded that: plea counsel thoroughly considered and investigated all available options and defenses, specifically self-defense and imperfect self-defense; prior to the guilty plea, counsel discussed the defenses with defendant and their potential for success at trial; and defendant decided to plead guilty after the discussion.

Judge Vazquez reviewed the plea transcript and concluded that defendant provided a sufficient factual basis for each element of aggravated manslaughter,2 and knowingly, intelligently, and voluntarily pled guilty to that crime. The judge found that: defendant caused Matthews' death by stabbing him multiple times; defendant did so recklessly because he knew Matthews was unarmed and he met non-deadly force with deadly force; and defendant acted under circumstances manifesting an extreme indifference to human life, specifically, his conduct resulted in a probability, as opposed to a mere possibility, of death.

Judge Vazquez also determined that defendant was not entitled to PCR because plea counsel did not render ineffective assistance. The judge found that self-defense did not apply because defendant had no reasonable belief that deadly force was necessary and the deadly force he used on the unarmed Matthews was not reasonable under the circumstances.3 The judge also found that imperfect self-defense did not apply because there was evidence that defendant would have retreated had he known that Matthews was sick, which indicated he lacked an honest belief that deadly force was necessary.

Judge Vazquez also concluded that defendant failed to establish he suffered prejudice as a result of plea counsel's deficiencies. The judge noted that defendant was eligible for an extended-term sentence, and determined that defendant benefitted from the plea agreement. The judge noted that defendant received a lesser sentence than he could have received if convicted of murder, and would have received the same twenty-year sentence if convicted of reckless manslaughter as a lesser include offense to murder..

On appeal, defendant raises the following contentions:

POINT ONE

THE FACTUAL BASIS PROVIDED BY DEFENDANT AT HIS RETRAXIT PLEA HEARING FAILED TO DEMONSTRATE [AGGRAVATED] MANSLAUGHTER.

POINT TWO

THE [PCR] COURT FAILED TO VIEW THE FACTS IN THE LIGHT MOST FAVORABLE TO DEFENDANT IN DETERMINING THAT DEFENDANT WAS NOT ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE OF [INEFFECTIVENESS] OF COUNSEL.

POINT THREE

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF [PCR] COUNSEL AS COUNSEL FAILED TO OBTAIN A STATEMENT FROM DEFENDANT'S WIFE IN SUPPORT OF DEFENDANT'S CLAIMS (NOT RAISED BELOW).

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542 (2013) (citations omitted). With respect to a guilty plea, our Supreme Court has explained that

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[State v. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)) (internal quotation marks omitted).]

We have considered defendant's 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 Judge Vazquez expressed in his comprehensive and well-reasoned written opinion.

Affirmed.

1 Appellant's name incorrectly noted as Sharieff Muhammad on the Judgment of Conviction.

2 "Criminal homicide constitutes aggravated manslaughter when . . . [t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1). The State must prove beyond a reasonable doubt that the defendant: (1) caused the victim's death, and (2) did so recklessly, and (3) did so under circumstances manifesting extreme indifference to human life. See Model Jury Charge (Criminal), "Aggravated Manslaughter" (N.J.S.A. 2C:11-4a) (Revised 3/22/04).

3 The self-defense statute, N.J.S.A. 2C:3-4, provides as follows, in pertinent part:

The use of deadly force is not justifiable under [N.J.S.A. 2C:3-4] unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

. . . .

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take[.]

[N.J.S.A. 2C:3-4b(2)(b).]