STATE OF NEW JERSEY v. MICHAEL KRASSNOSKY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL KRASSNOSKY,

Defendant-Appellant.

__________________________________

September 10, 2015

Submitted June 2, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-07-1837.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Krassnosky appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

On July 30, 2008, under indictment number 08-07-1837, defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three).

On September 2, 2008, defendant pled guilty to count one, admitting under oath to putting his finger into his four-year old granddaughter's vagina. On December 19, 2008, in accordance with the plea agreement, all remaining charges were dismissed and defendant was sentenced to a prison term of ten years with an 85% parole disqualifier based upon the No Early Release Act N.J.S.A. 2C:43-7.2.

Defendant did not file a direct appeal. However, on December 28, 2012, he submitted a pro-se motion to compel discovery under Rule 3:13-3, claiming that prior to his plea hearing, he did not receive discovery. Judge Kyran Connor denied the motion, finding the motion was procedurally improper as it was based on a pretrial discovery rule and defendant had already been sentenced pursuant to a plea agreement. The court also informed defendant that

if and when a petition for post-conviction relief is made, and you have the opportunity to substantiate your assertions with more detail regarding the failure of discovery, this court would be inclined to consider your claims, and if found persuasive, I would enter an appropriate order in the post-conviction relief proceeding, namely, an evidentiary hearing. It is through these procedures that matters of this nature are addressed, not through bald assertions, which on their own, cannot support an order by this Court granting the relief you seek.

Following his unsuccessful motion, defendant filed a pro se PCR petition. After counsel was subsequently appointed to represent defendant, supplemental legal argument was filed contending that trial counsel had provided ineffective assistance of counsel (IAC) because he failed to enter a motion to dismiss the indictment and unduly pressured defendant to plead guilty.

In a bench decision following oral argument, Judge Connor denied defendant's petition for PCR and evidentiary hearing, concluding that defendant failed to make out a prima facie claim in support of PCR, as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Court in State v. Fritz, 105 N.J. 42, 52 (1987). Specifically, the judge found that a motion to dismiss the indictment would have been meritless because there was sufficient proof to sustain a charge of aggravated sexual assault. Although the judge was not provided a grand jury transcript, he found that the defendant's contention that the victim's medical evaluation did not support first-degree aggravated sexual assault was a misreading of law.1 The evaluation's conclusion that the victim's hymen remained intact and there was no evidence of trauma to her vagina did not preclude proof of penetration which is all that is necessary to establish first-degree aggravated sexual assault. See N.J.S.A. 2C:14-2(a). Judge Connor relied upon the police investigation reports that were provided with the PCR claims; the victim's statement that her vagina was penetrated by defendant's finger and defendant's statement that he touched the victim's vagina on top of her panties. Defendant does not contend that these records were not presented to the grand jury, and therefore should not have been considered in determining the merits of a motion to dismiss the indictment.

In rejecting the claim that trial counsel unduly influenced defendant to plead guilty, Judge Connor relied upon State v. Cummings, 321 N.J. Super 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), finding that there was nothing more than bald assertions, with "nothing extrinsic that [defendant] present[ed] by way of corroboration" to show there was IAC. The judge further added that if the court "were to convene an evidentiary hearing[,] nothing suggests that the defendant would be able to produce any evidence that corroborates his assertions." Defendant was not afforded an evidentiary hearing because as required by State v. Preciose, 129 N.J. 451, 462 (1992), he did not "demonstrate the . . . 'reasonable likelihood of succeeding' under the Strickland test in order to trigger an evidentiary hearing."

On appeal, defendant raises the following points

POINT I

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

(A) COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE CHARGE OF AGGRAVATED SEXUAL ASSAULT AT THE INDICTMENT STAGE OF THE PROCEEDING.

(B) COUNSEL WAS INEFFECTIVE THEREBY ALLOWING DEFENDANT TO WITHDRAW HIS GUILTY PLEA.

(C) TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AND/OR PROVIDE DISCOVERY TO DEFENDANT DEPRIVING HIM OF ASSISTING IN HIS OWN DEFENSE.

Having considered these arguments in light of the record and applicable legal standards, we affirm.

We begin with the well-settled principle that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).

The first prong "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove this element, a defendant must demonstrate "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. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J.596, 625 (1990) (citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52); see also State v. Echols, 199 N.J. 344, 361 (2009) (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different").

A court reviewing a PCR petition based on IAC claims has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Preciose, supra, 129 N.J. at 462. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. It follows that a "defendant must allege specific facts and evidence supporting his allegations[,]" State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).

Applying these principles, we affirm substantially for the reasons expressed by Judge Connor in his thoughtful opinion. We add only the following comments.

Defendant contends that trial counsel failed to file a motion to dismiss the indictment based upon the lack of proofs establishing probable cause that he penetrated the victim's vagina to warrant a charge of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). Based on the record before us, we conclude a motion to dismiss would not have been successful. Thus, there is no basis to conclude trial counsel provided ineffective assistance which prejudiced defendant's defense.

Likewise, defendant's argument that his guilty plea should be withdrawn because he is not guilty of first-degree aggravated sexual assault is not a basis for a claim of IAC. He offers no evidence beyond his own unsupported self-serving allegation that trial counsel's performance resulted in his guilty plea. Accordingly, we need not consider the standard set forth in State v. Slater, 198 N.J. 145, 157-58 (2009) to warrant withdrawal of a guilty plea. Lastly, we conclude there is no merit to defendant's contentions of IAC by the failure to provide him with discovery or conduct an investigation. As with his other assertions, these claims are supported by nothing more than bald allegations and without any showing that the outcome would have been different.

Affirmed.

1 The record before us also does not include a grand jury transcript.