STATE OF NEW JERSEY v. RAYMOND JENKINS

NOT FOR PUBLICATION WITHOUT THE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.

RAYMOND JENKINS,

Defendant-Appellant.

_____________________________________________

March 10, 2014

Submitted January 27, 2014 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-04-0300.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raymond Jenkins appeals from the April 13, 2012 order of the Law Division denying his petition for post-conviction relief (PCR). On appeal, he raises the following points:

point i

the court erred in denying defendant's petition for post-conviction relief without affording him an evidentiary hearing to fully address his contention that he failed to receive effective legal representation at the trial level.

point ii

the court's decision failed to satisfy the requirements of r.1:7-4.

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

Tried to a jury, defendant was found guilty of third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count one), and second-degree distribution of heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count three). Defendant was sentenced to a ten-year term with five years of parole ineligibility to be served concurrently with the sentence he was already serving. We affirmed defendant's conviction, State v. Jenkins, No. A-5024-07 (App. Div. August 3, 2010), and our Supreme Court denied certification. 205 N.J. 98 (2010).

Defendant filed a pro se petition for PCR alleging ineffective assistance of his trial counsel for failing to produce evidence that defendant was speaking with his wife on the phone at the time an undercover officer testified he called defendant to arrange the purchase of drugs. After counsel was appointed and a supplemental brief filed, defendant submitted a certification from his wife, and toll records showing that three calls were made or received from his phone between 5:00 p.m. and 5:17 p.m. on July 8, 2006. Each call lasted approximately one minute.

The PCR court heard oral argument and denied defendant's petition without a hearing. The court noted that the calls to and from defendant's wife were so brief that they did not exclude the possibility that during the seventeen-minute time period defendant could have spoken with the undercover officer. The court found that the proffered evidence was not exculpatory and thus, defendant's trial counsel was not ineffective for not pursuing it. We agree.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must first show counsel's performance was so deficient as to objectively fall outside the broad range of professionally reasonable, acceptable assistance. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). Secondly, a defendant must demonstrate that counsel's performance was so deficient that it "actually had an adverse effect on the defense." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697; see also State v. Fritz, 105 N.J. 42, 58 (1987). In other words, a defendant must demonstrate that, but for counsel's deficiency, there is a reasonable probability that the outcome of the proceeding would have been different. Strickand, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The three proffered calls would not have been probative, much less exculpatory, as they account for only three minutes during the time period between 5:00 p.m. and 5:17 p.m. on July 8, 2006, when the undercover officer testified he spoke with defendant and arranged the purchase of narcotics. Defendant has failed to show deficient performance by his trial counsel as required by Strickland and Fritz.

We affirm the denial of defendant's PCR petition for the reasons contained in the decision of Judge Joseph P. Donohue, placed on the record on April 13, 2012.