STATE OF NEW JERSEY v. KEVIN WATKINS-BEY

 

NOT FOR PUBLICATION WITHOUT THE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.

KEVIN WATKINS-BEY,

Defendant-Appellant.

_______________________________________

September 24, 2015

 

Submitted September 16, 2015 Decided

Before Judges Yannotti and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-03-0293.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kevin Watkins-Bey appeals from an order entered by the Law Division on August 1, 2013, which denied his petition for post-conviction relief ("PCR"). We affirm.

Defendant was charged under Hudson County Indictment No. 05-03-0293, with possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1) (counts one and eight); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 35-5b(3) (counts two and nine); possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (counts three and ten); possession of CDS with intent to distribute within 500 feet of a public housing facility, public park or public building. N.J.S.A. 2C:35-7.1 (counts four and eleven); distributing CDS, N.J.S.A. 2C:35-5a(1) and 35-5b(3) (counts five and twelve); distributing CDS within a school zone, N.J.S.A. 2C:35-7 (count six and thirteen); distribution of CDS within 500 feet of a public housing facility, public park or public building), N.J.S.A. 2C:35-7.1 (counts seven and fourteen); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count fifteen); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count sixteen); possession of a weapon while committing certain CDS offenses, N.J.S.A. 2C:39-4.1a (counts seventeen and eighteen); possession of a weapon by a person convicted of certain offenses, N.J.S.A. 2C:39-7b (count nineteen); and conspiracy to distribute CDS, N.J.S.A. 2C:5-2, 35-5a(1) and 35-56(3) (counts twenty and twenty one).

In 2005, defendant was tried before a jury, which was unable to reach a verdict and a mistrial was declared. A second trial was held in 2007. At the trial, evidence was presented which established that at around 6:30 p.m. on November 29, 2004, a narcotics officer of the Jersey City Police Department was conducting surveillance outside a public housing complex within the City. Perimeter units were situated a few blocks away. The officers observed individuals making what appeared to be hand-to-hand illegal drug transactions with two individuals.

Officers in the perimeter units arrested the individuals, and searches conducted incident to these arrests revealed that they were in possession of CDS. The surveillance officer told the perimeter units that the distributor of the CDS was wearing a yellow shirt and black jacket. The perimeter units were told to arrest the distributor. Two perimeter officers entered a building in the housing complex to ensure that no one escaped from the rear.

When one of the officers entered through the back door, he encountered defendant, who was wearing a yellow shirt and black coat. The officer conducted an investigative stop, searched defendant and found that he was in possession of a loaded, .32 caliber revolver. Defendant was arrested and transported to police headquarters. The police found cocaine and heroin in defendant's coat pocket.

Defendant claimed that this was a case of mistaken identity. Defendant asserted that, at around 6:30 p.m., he was on his way to the housing complex, but stopped in a neighboring bodega to purchase lottery tickets. He claimed he entered the bodega around 6:25 p.m., spoke with the clerk, and purchased two lottery tickets at 6:46 p.m. Thereafter, he went to the housing complex. Defendant denied he possessed or sold CDS that evening. He also denied he possessed a handgun at the time.

Defendant asserted that he observed a police officer run up the stairs in the building and tried to move out of the way, when he was grabbed, taken to the ground and handcuffed. Defendant said the officer never told him why he was being arrested, and the officer took him to police headquarters for questioning. Defendant recalled seeing drugs and a handgun on the floor in the hallway of the housing complex after he was arrested.

The jury found defendant guilty on twenty of the twenty-one counts. The trial court subsequently denied defendant's motion for a new trial, and sentenced defendant to an aggregate term of twenty-five years, with twelve and one-half years of parole ineligibility. Defendant appealed. We affirmed defendant's convictions and sentences in an unpublished opinion. State v. Watkins, No. A-5805-08 (App. Div. Nov. 28, 2011). The Supreme Court denied defendant's petition for certification. State v. Watkins, 210 N.J. 219 (2012).

Thereafter, defendant filed a pro se petition for PCR, alleging that he was denied the effective assistance of trial counsel. The PCR court entered an order dated August 1, 2013, denying PCR, for the reasons set forth in a written opinion filed on that date. This appeal followed. On appeal, defendant argues

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS BY FAILING TO HAVE AN ALIBI WITNESS TESTIFY.

We are unpersuaded by defendant's argument and affirm the order denying PCR substantially for the reasons provided by Judge Sheila A. Venable in her thorough written opinion dated August 1, 2013. We add the following.

A defendant's claim that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution is considered under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists 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. Our Supreme Court has adopted the Strickland test for consideration of claims of ineffective assistance raised under the New Jersey Constitution. See State v. Fritz, 105 N.J. 42, 58 (1987).

Here, defendant claims his trial attorney was ineffective because he failed to present testimony from an alleged alibi witness, who we identify as S.W. According to defendant, S.W. would have corroborated his assertion that he was not outside the housing complex engaging in the distribution of CDS at 6:30 p.m. on November 29, 2004, as claimed by the police.

Defendant asserts he entered the neighborhood bodega at around 6:25 p.m. and purchased two lottery tickets at 6:46 p.m. He maintains he could not have been outside the housing complex at 6:30 p.m. when he was allegedly observed by the police. He says S.W. "actually" saw him heading towards the housing complex with the lottery tickets in his hand on the evening on November 29, 2004.

Judge Venable determined that counsel's failure to call S.W. as a witness was reasonable. In the statement S.W. provided to the investigators, S.W. said she had been walking away from the housing complex to the bodega to purchase her lottery tickets sometime between 7:45 p.m. and 8:00 p.m. S.W. stated that, because the owner of the store stops "taking numbers" at 8:00 p.m., she was rushing to purchase her tickets "in time."

S.W. claimed that, along the way, she stopped to speak with defendant, and noticed a police vehicle driving down the street towards the housing complex. However, as the State points out, by 7:30 p.m., defendant had already been arrested and transported to police headquarters.

Furthermore, although defendant asserts that S.W.'s reference to a patrol car was "significant" because she was "ostensibly" referring to one of the cars of the perimeter units, there is no indication that the car she observed was involved in defendant's arrest. Thus, S.W.'s testimony did not have any probative value, and counsel's decision not to call her as a witness did not fall "below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Moreover, defendant failed to show that his defense was prejudiced by counsel's decision not to call S.W. as a witness. As Judge Venable noted in her written opinion, at trial, defendant presented evidence which confirmed that defendant had purchased his lottery tickets at the bodega between 6:46 p.m. and 6:47 p.m. The judge wrote that defense counsel had, in fact, presented evidence suggesting that defendant was not at the scene when the offenses were committed. S.W.'s testimony would not have provided further support for the defense.

Defendant also argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. Again, we disagree. An evidentiary hearing on a PCR petition is only required when a defendant establishes a prima facie case in support of PCR, there are material issues of fact that cannot be resolved based on the existing record, and the court determines that an evidentiary hearing is required to resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

Here, there was no genuine issue of material fact regarding defendant's claim of ineffective assistance of counsel. Furthermore, as the PCR court found, defendant had not presented a prima facie case for relief. The PCR court correctly determined that an evidentiary hearing was not required. Porter, supra, 216 N.J. at 354.

Affirmed.