STATE OF NEW JERSEY v. DAVID SMITH

NOT FOR PUBLICATION WITHOUT THE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.

DAVID SMITH,

Defendant-Appellant.

_________________________________________

June 16, 2015

Submitted June 2, 2015 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-07-2565.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

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 David Smith appeals from an order entered by the Law Division on February 26, 2014, denying his petition for post-conviction relief ("PCR"). We affirm.

Defendant was tried before a jury and found guilty of third-degree conspiracy to receive stolen property, N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-7; third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree aggravated assault upon a law enforcement officer, Manuel Souto ("Souto"), N.J.S.A. 2C:12-1b(5)(a); third-degree aggravated assault upon L.J.1, N.J.S.A. 2C:12-1b; second-degree eluding, N.J.S.A. 2C:29-26; 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 trial court sentenced defendant to an aggregate term of twenty years imprisonment, without any period of parole ineligibility.

Defendant's convictions arose from the following facts, as established at trial. On the morning of January 15, 2007, Officers Souto and Miguel Sanabria ("Sanabria") of the Newark Police Department were on duty. At 7:50 a.m., they were dispatched to a location following a report that a car was being stripped there. When Souto and Sanabria arrived in their patrol car, they observed up to ten men removing parts from a green 1995 Honda. A black Acura was parked in front of the Honda. When the men saw the officers' patrol car, they began to scatter.

Souto and Sanabria identified defendant as the driver of the Acura. He was in the car when they arrived, and afterwards, another person jumped in the back seat. Souto exited the patrol car on the driver's side, and Sanabria exited the car on the sidewalk side. They walked towards the Acura. The engine of the Acura was running, and the officers told defendant several times to turn off the engine and exit the vehicle.

Defendantput the car in reverse and drove up on to the hood of the Honda, pushing it back about one car length. Souto and Sanabria drew their weapons. They continued ordering defendant to stopand triedto block his escape.Defendant then drove the Acura toward Souto, who again ordered him to stop. Souto slipped and fell. Believing his life was in danger, Souto fired his weapon twice at the car. Sanabria also fired at the car several times.

None of the shots struck defendant, and he drove away from the scene. Defendant headed east in the direction of East Orange. He was driving at a speed of sixty-five to seventy miles an hour. Defendant went through a red light at an intersection, and collided with a car being driven by L.J. According to L.J., defendant did not slow down at all when he entered the intersection. L.J. was not seriously injured. However, defendant and the person who was riding in the Acura with him were seriously injured in the collision.

Defendant appealed from the judgment of conviction. We reversed defendant's conviction for third-degree aggravated assault upon L.J., and remanded the matter for a new trial on that charge, but affirmed defendant's other convictions. State v. Smith, No. A-1670-09 (App. Div. June 15, 2011) (slip op. at 18). We also directed the trial court to conduct a hearing on defendant's ability to pay restitution, and to correct the judgment of conviction to accurately reflect the jury's verdict and the court's oral sentence. Ibid.

Thereafter, defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Smith, 213 N.J. 535 (2013). The State decided not to re-try defendant on the third-degree aggravated assault charge, and the trial court entered an amended judgment of conviction deleting that conviction, leaving defendant with a fifteen-year State prison term.

On July 30, 2013, defendant filed a pro se petition for PCR. Defendant alleged that: (1) he was unduly prejudiced by the prosecutor's use of the grand jury indictment, and by the judge's failure to properly instruct the jury on the "force and import" of the indictment; (2) he was denied the effective assistance of counsel; and (3) he was denied his right to due process by the State's overzealous advocacy.

The court assigned counsel to represent defendant. Counsel filed a brief, in which counsel raised the following points: (1) the petition is not barred by Rule 3:22; (2) defendant was a victim of prosecutorial misconduct; (3) defendant was denied the effective assistance of trial counsel; (4) cumulative errors on the part of trial counsel denied defendant his right to a fair trial; and (5) defendant was denied the effective assistance of appellate counsel. In addition, PCR counsel incorporated all of the issues that defendant had raised in his pro se petition.

On February 21, 2014, Judge Patricia K. Costello heard oral argument in the matter, and on February 26, 2014, filed a written opinion, which thoroughly addressed each issue raised by defendant and PCR counsel and concluded that the petition must be denied. The judge entered an order dated February 26, 2014, denying the petition.

On appeal, defendant raises the following arguments

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A [PRIMA FACIE] CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR NOT ADEQUATELY PREPARING FOR TRIAL, INCLUDING INADEQUATE INVESTIGATION AND CONSULTATION.

We are convinced from our review of the record that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Costello's thorough and well-reasoned opinion. We add the following.

Claims of ineffective assistance of counsel are considered under the two-part test enunciated 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). To secure relief under the Strickland test, the defendant first must show that his attorney "'made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant 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). The defendant also must show that his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Furthermore, the court is not required to conduct an evidentiary hearing on a PCR petition unless the defendant establishes a prima facie case for relief, the existing record is not sufficient to resolve the claims and the court determines that a hearing is required. R. 3:22-10(b); see also State v. Porter, 216 N.J. 343, 354-55 (2013).

We are convinced that Judge Costello correctly determined that the trial record did not support defendant's claim that defense counsel failed to prepare the case adequately, did not communicate with him, was unfamiliar with his version of the incident, and did not prepare him for cross-examination. Judge Costello noted that the trial transcript indicated that counsel had communicated with defendant concerning the case. They had discussed defendant's concern that he had not been provided with clear copies of certain photographic evidence. They also had discussed whether defendant intended to testify.

The judge also pointed out that defendant's testimony indicated that his attorney was familiar with defendant's version of the incident, which was elicited on direct examination with many leading questions. Defense counsel also was familiar with the photographic evidence and the route that defendant had taken. Counsel understood the significance of the ballistics evidence. The judge noted that counsel's summation was well-organized, and showed that counsel was completely familiar with the strengths and weaknesses of the State's case.

In addition, Judge Costello correctly found that there was no merit in defendant's contention that his attorney failed to adequately investigate the case. The judge pointed out that prior to trial, defense counsel had obtained almost all of the discovery, including photos from an internal affairs investigation of the incident. Counsel also had ordered the grand jury minutes and, while they had been provided shortly before the trial, defendant was not prejudiced by the delay. In addition, Judge Costello correctly found that, while defendant claimed his attorney should have engaged expert witnesses for the defense, he did not establish what those witnesses would have said if called to testify.

As the judge noted, to support a claim that defense counsel failed to adequately investigate the case, the defendant "'must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" Porter, supra, 216 N.J. at 353 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Here, defendant failed to provide factual support for his claim.

We conclude that the record supports the court's determination that defendant failed to establish a prima facie case for PCR. The existing record provided a sufficient basis for the court's decision. Accordingly, the PCR court correctly determined that an evidentiary hearing was not required.

Affirmed.

1 We identify this individual by her initials, in order to protect her identity.