STATE OF NEW JERSEY v. GERALD FAULK

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5820-11T2




STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


GERALD FAULK,


Defendant-Appellant.


______________________________________

January 10, 2014

 

Submitted November 18, 2013 Decided

 

Before Judges Yannotti and Ashrafi.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-12-2046.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

 

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).


PER CURIAM

Defendant Gerald Faulk appeals from an order entered by the Law Division on January 19, 2012, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Hudson County Indictment No. 07-12-2046 with four counts of robbery, N.J.S.A. 2C:15-1; five counts of burglary, N.J.S.A. 2C:18-2; three counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); three counts of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 15-1; one count of aggravated assault, N.J.S.A. 2C:12-1(b)(1); three counts of conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 18-2; one count of theft by unlawful taking, N.J.S.A. 2C:20-3; and one count of conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and 20-3.

Thereafter, defendant filed a motion to suppress his identifications by certain victims and witnesses. On February 9, 2009, after hearing oral argument, the trial court denied the motion without a hearing.

On March 12, 2009, defendant pled guilty to two counts of first-degree robbery (counts one and nineteen), one count of second-degree robbery (count eleven), one count of second-degree aggravated assault (count five), and one count of third-degree burglary (count fifteen). The court sentenced defendant on April 24, 2009, to an aggregate term of eighteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court entered a judgment of conviction dated April 28, 2009.

Defendant filed a notice of appeal from the judgment of conviction, and in his appeal, raised the following argument:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR A WADE[1] HEARING AS ENOUGH EVIDENCE WAS PRESENTED TO REQUIRE A HEARING AS TO WHETHER THE VARIOUS IDENTIFICATION PROCEDURES WERE IMPERMISSIBLY SUGGESTIVE IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.

 

We rejected defendant's argument and affirmed his conviction in an unpublished opinion. State v. Faulk, No. A-0233-09 (App. Div. Jan. 24, 2011).

Defendant then filed a petition for PCR, in which he alleged that he was denied the effective assistance of counsel; the evidence did not support the charges of first-degree robbery; and an evidentiary hearing was required to show that the trial court erroneously relied on the "flawed identification procedure" employed by the police in obtaining the identifications of defendant. On January 19, 2012, the PCR court heard oral argument on the petition and entered an order dated January 19, 2012, denying the petition for the reasons stated on the record and appended to the court's order.

Defendant appeals and raises the following arguments for our consideration:

POINT I

 

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, BY TRIAL COUNSEL'S FAILURE TO PREPARE FOR THE WADE HEARING.

 

POINT II

 

APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THE ISSUE OF EXCESSIVE SENTENCE.

 

For the reasons that follow, we conclude that defendant's arguments are entirely without merit.

Defendant contends that he was denied the effective assistance of trial counsel. He maintains that trial counsel failed to investigate the facts thoroughly so that he could challenge the State's identification evidence. Defendant notes that Henry Granderson, the victim of one of the robberies, reported that his assailant was known by the street name of "Wise." Defendant says the police "somehow connected" that name with him and he became the prime suspect.

Defendant claims that everything the police did from that point forward was "designed to confirm their suspicions," including the use of out-of-court identification procedures. Defendant asserts that, if the police were wrong and "Wise" was someone else, his defense counsel "overlooked critical exculpatory evidence." Defendant claims that, at a minimum, his attorney had a duty to investigate, but that "did not happen."

Defendant additionally contends that his trial counsel was deficient because he did not file a motion seeking discovery concerning the identification procedures that the police employed. Defendant says the police showed one eyewitness a book of photos, but counsel failed to seek any information about the contents of the book.

He asserts that the record does not indicate what photos were in the book, whether his photo appeared multiple times, or whether the police used the book rather than an array of photos so they could conduct the identification procedure "in any haphazard way they wanted." He contends an evidentiary hearing was required to explore these issues.

Defendant also asserts that the police employed a show-up procedure involving multiple witnesses. He claims the process was clearly suggestive, and counsel should have filed a discovery motion or interviewed the witnesses to establish the basis for an evidentiary hearing.

Where, as here, a defendant asserts he was denied the effective assistance of counsel, the defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

First, the defendant must show that his attorney was deficient. Strickland, supra, 466 U.S. at 687, 103 S. Ct. at 2064, 80 L. Ed. 2d at 693. In addressing this point, the court must recognize "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Second, the defendant must show that his attorney's deficient performance prejudiced his defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To meet this part of the test, the defendant must establish that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Here, the PCR court determined that defendant failed to establish a prima facie case of ineffective assistance of counsel. The court noted that, while defendant says his attorney should have undertaken discovery to ascertain how the police connected him to the street name "Wise" and interviewed the victims, he had not explained what this additional investigation would have revealed.

The PCR court noted that at the argument on defendant's suppression motion, the State acknowledged that it did not know how the police connected defendant to the street name "Wise." The PCR court found that this information had no bearing on whether the identification evidence should have been suppressed, or whether an evidentiary hearing should have been conducted on the suppression motion.

The PCR court additionally noted that the defendant claimed the photo book that the police gave to one of the victims was inherently suggestive, but defendant had not provided the court with the photos or explained the impact the photos would have had on the outcome of the suppression motion. Moreover, the court noted that, while defendant claimed that his attorney should have filed a motion to compel discovery, "[s]uch a motion would have been futile, as the State did not possess any additional discovery."

We are convinced that the record fully supports the PCR court's determination. As the court found, defendant failed to establish that his attorney was deficient in his handling of the Wade hearing. Defendant's claims are based on "bald assertions," which are insufficient to establish that he was denied the ineffective assistance of trial counsel. See State v. Cummmings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant additionally argues that he was denied the effective assistance of appellate counsel because his attorney failed to raise an excessive sentence argument in the direct appeal. However, failure to raise a claim is not per se ineffective assistance of counsel. State v. Goodwin, 173 N.J. 583, 597 (2002). Moreover, as the PCR court determined, any excessive sentence argument would have been meritless.

Here, defendant's plea agreement permitted imposition of a twenty-year term of incarceration, but the trial court imposed an aggregate term of eighteen years. Furthermore, the bargained-for term of up to twenty years was substantially shorter than the maximum sentence that could have been imposed if defendant had been tried and found guilty of all of the charged offenses.

In addition, as part of the plea agreement, the State agreed not to seek imposition of an extended term, and the sentences were run concurrently, even though the facts may have allowed the court to impose consecutive sentences. We therefore conclude that the record supports the PCR court's determination that an excessive sentence claim would have been baseless and defendant was not denied the effective assistance of appellate counsel merely because counsel did not raise that claim in the direct appeal.

Defendant additionally argues that the PCR court should have conducted an evidentiary hearing on his petition. We disagree. Defendant failed to establish a prima facie case of ineffective assistance of trial or appellate counsel. Thus, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

 

 

 

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).



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