STATE OF NEW JERSEY v. MARCEL PRIDGEN

NOT FOR PUBLICATION WITHOUT THE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.

MARCEL PRIDGEN,

Defendant-Appellant.

_________________________________

December 8, 2015

Submitted October 20, 2015 Decided

Before Judges Leone and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1802.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals the August 29, 2013 denial of his petition for post-conviction relief (PCR) on the basis of ineffective assistance of counsel. We affirm substantially for the reasons expressed in the thorough, well-reasoned opinions of Judge John A. Young, Jr.

On June 17, 2008, during a surveillance operation, a sergeant in the Jersey City Police Department observed defendant enter an alleyway and remove a plastic bag from the front of his shorts and place the plastic bag in a hole in the dirt. After defendant left, the sergeant recovered the plastic bag, which contained several vials of controlled dangerous substances (CDS) which he believed to be cocaine. Police spotted defendant a short time later, and he was arrested.

A jury convicted defendant of two counts of third-degree possession of a CDS with the intent to distribute; third-degree possession of a CDS with the intent to distribute within 1000 feet of a school zone; and second-degree possession of a CDS with the intent to distribute within 500 feet of a public housing facility. After merging the first three counts into the second-degree charge, the trial court sentenced defendant to fifteen years in prison, with a seven and a half year term of parole ineligibility. Defendant appealed and we affirmed his conviction. Defendant's petition for certification was denied on January 10, 2012. State v. Pridgen, No. A-3827-09T3 (App. Div. July 5, 2011), certif. denied, 209 N.J. 97 (2012).

Defendant filed a petition for PCR on August 17, 2012. In his petition, defendant argued that his trial counsel was ineffective under New Jersey's Strickland/Fritz1 framework, which our courts use in determining whether a criminal defendant's constitutional right to counsel was violated at trial. Defendant asserted that his counsel was ineffective for several reasons, including: his counsel's failure to raise an issue as to mistaken identity at the time of arrest (defendant contended that his attire at the time of the arrest differed significantly from that described in the police officer's testimony); that his counsel never admitted a police property receipt into evidence; that his counsel never mentioned that another individual was arrested at the same spot as defendant minutes before his own arrest.

Defendant also argued that his trial counsel failed to raise issues as to the sufficiency of the evidence; that his counsel failed to call exculpatory witnesses; that his counsel failed to look at the scene of the crime; that his counsel failed to inquire as to the lack of CDS on defendant's person at the time of arrest; that his counsel could have demanded a mistrial on the basis of prosecutorial misconduct; and, most importantly, that he failed to ask for a mistrial after a juror ("Juror Eleven") may have entered the judge's chambers during a jury recess and also discussed her role as a juror in a courthouse elevator.

Judge Young considered defendant's petition and on April 19, 2013 issued an opinion rejecting most of defendant's arguments but granting an evidentiary hearing pursuant to Rule 3:22-10(b), limited to the discrete issue of whether defendant's trial counsel had fully discussed with defendant the circumstances and impact of Juror Eleven's conduct and whether counsel's conduct regarding the juror had a deleterious impact on the proceedings. The judge denied defendant's request to recall Juror Eleven, who allegedly entered the judge's chambers, citing Rule 1:16-1, which allows jurors to be recalled only on the basis of good cause, which defendant had not shown. Following the PCR hearing, on August 29, 2013, Judge Young issued an opinion and order denying defendant's PCR petition on the basis that defendant provided no evidence to demonstrate that his counsel was ineffective as asserted by defendant in his certification. This appeal followed.

On appeal, defendant argues

POINT I.

THE ORDER DENYING DEFENDANT'S PETITON FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE TRIAL COUNSEL'S DEFICIENT PERFORMANCE MATERIALLY CONTRIBUTED TO DEFENDANT'S CONVICTION.

A. TRIAL COUNSEL ENDORSED THE TRIAL COURT'S DECISION TO FOREGO AN INVESTIGATION INTO ALLEGATIONS OF MISCONDUCT BY JUROR NO. 11.

1. JUROR NO. 11'S PRIVATE CONVERSATION ON AN ELEVATOR.

2. JUROR NO. 11 ENTERING JUDGE'S CHAMBERS.

B. TRIAL COUNSEL'S FAILURE TO INVESTIGATE MS. SHIPMAN AS AN ALIBI WITNESS AMOUNTED TO INEFFECTIVE ASSISTANCE.

C. TRIAL COUNSEL FAILED TO PROPERLY AUTHENTICATE THE PROPERTY RECEIPT.

POINT II.

THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A POST INDICTMENT INTERVIEW OF JUROR NO. 11 BECAUSE GOOD CAUSE EXISTED UNDER R. 1:16-1.

POINT III.

THE COURT ERRED BY LIMITING THE EVIDENTIARY HEARING TO THE SOLE ISSUE OF MISCONDUCT BY JUROR NO. 11.

We have considered these arguments in light of the record and the applicable legal standards, and conclude they are without sufficient merit to warrant discussion in a written opinion. SeeR.2:11-3(e)(2). We affirm substantially for the reasons expressed in the thorough written opinions of Judge Young dated August 19, and August 29, 2013. We add the following comments.

"[B]ald assertions" of ineffective assistance are not enough to maintain a claim under Stricklandor Fritz. State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that [a defendant] wishe[s] to present [at the hearing]." State v. Jones, 219 N.J.298, 312 (2014). Here, defendant failed to supply a certification from the alleged exculpatory alibi witness.

Defendant's allegation that his trial counsel should have requested a mistrial after Juror Eleven had a conversation with courthouse employees on an elevator at the courthouse at the time the trial took place fails the Strickland/Fritz test. Defendant did not demonstrate how counsel's performance was deficient. Defendant's trial counsel did discuss the matter with the court and with his client. Neither the court nor defendant saw any need to question the juror about comments made on the elevator because they were innocuous on their face. Counsel explained that the juror identified herself as such and that she was a courthouse employee. Counsel discussed the matter with the client and asked the court not to inquire into the matter further.

Defendant argues that the PCR judge incorrectly found that there was no possibility that Juror Eleven was inside the trial judge's chambers during a recess. We must defer to a "PCR court's findings that are supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). The PCR court found the sheriff's officer's testimony more credible than defendant's because the defendant's own testimony conflicted with his mother's testimony regarding the layout of the courtroom where Juror Eleven allegedly stepped out of the judge's chambers.

Defendant claims that Juror Eleven should have been recalled to testify at the evidentiary hearing. This argument similarly fails on appeal. Under Rule 1:16-1, no recall or examination of a juror in a case is allowed unless a party or the court can demonstrate good cause. Good cause typically requires more than a "mere possibility of a tainted verdict." State v. Young, 181 N.J. Super. 463, 469 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982) (citing State v. La Rocca, 81 N.J. Super. 40, 44-45 (App. Div. 1963)). The PCR judge considered all appropriate factors in determining whether recalling Juror Eleven was necessary. The trial judge did not consider the proceedings as a whole tainted by the nature of the events that transpired, especially given the supposedly innocuous nature of Juror Eleven's comments.

Here, the PCR court found that defendant did not submit evidence that amounted to a prima facie case of ineffective assistance of counsel. Without a prima facie case establishing that the defendant has a colorable claim under Strickland/Fritz, no evidentiary hearing is necessary. Preciose, 129 N.J. 451, 462-63 (1992). The PCR judge found that defendant's claims were "vague" and "speculative," and accordingly found no evidentiary hearing was required. Accordingly, giving appropriate deference to the PCR judge's factual findings under Rule 3:22-10 and Preciose, supra, we affirm.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).