STATE OF NEW JERSEY v. YUSEF STEELE

NOT FOR PUBLICATION WITHOUT THE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.

YUSEF STEELE,

Defendant-Appellant.

____________________________________

October 27, 2016

Submitted June 8, 2016 Decided

Before Judges Fuentes and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-0326.

Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief).

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Yusef Steele appeals from an order of the trial court denying his petition for post-conviction relief (PCR). Pursuant to the Court's holding in State v. Parker, 212 N.J. 269 (2012), we are compelled to remand for the PCR judge to afford defense counsel the opportunity to address the court at oral argument.

A Middlesex County grand jury indicted defendant on a single count of fourth degree contempt, N.J.S.A. 2C:29-9. He was tried before a jury over a four-day period commencing on November 15, 2010, and ending on November 19, 2010. The jury found defendant guilty. On January 14, 2011, the trial court sentenced defendant to a term of eighteen months, to run consecutively with an unrelated term of imprisonment defendant was serving at the time. The court also imposed mandatory fines and penalties.

We affirmed defendant's conviction and sentence on direct appeal in an unpublished per curiam opinion. State v. Yusef Steele, Docket No. A-3512-10 (App. Div. December 12, 2012). The Supreme Court denied defendant's petition for certification. State v. Steele, 214 N.J. 235 (2013). On February 15, 2013, defendant filed a pro se PCR petition, which the court dismissed without prejudice on April 22, 2013. Court-assigned counsel thereafter filed a verified PCR petition on defendant's behalf supported by legal memorandum. Defendant claimed he received ineffective assistance from his trial attorney when he failed to properly investigate the case and develop a reasonable defense.

The PCR judge, who was the same judge who presided at defendant's trial, denied defendant's petition without oral argument. The judge explained her reasons in a memorandum of opinion dated December 10, 2014. Defendant now appeals raising the following arguments.

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION.

(A) THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

1. TRIAL COUNSEL'S FAILURE TO MAKE A MOTION TO DISMISS THE INDICTMENT PRIOR TO TRIAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

a. THE INDICTMENT WAS UNTIMELY FILED, WHICH RESULTED IN PREJUDICE TO MR. STEELE.

b. The indictment was fundamentally unfair to Mr. Steele.

2. TRIAL COUNSEL'S FAILURE TO INVESTIGATE POSSIBLE DEFENSES AND PREPARE AN EFFECTIVE DEFENSE DEPRIVED DEFENDANT OF A FAIR TRIAL, AND THEREFORE, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING POST-CONVICTION RELIEF COUNSEL THE OPPORTUNITY TO PRESENT ORAL ARGUMENT.

We recited the material facts presented at trial in our opinion affirming defendant's conviction.

On August 15, 2008, Yurkovic was part of a back-up unit for fellow officers who were conducting a surveillance investigation for possible narcotics activity. Yurkovic testified he was wearing plain clothes with his badge hanging around his neck. As a result of the investigation, Yurkovic and another officer approached defendant at the intersection of George and Hassart Streets. When defendant saw the police officers, "he took off running down the street." Yurkovic testified that defendant "tossed" something during the foot chase, and the police subsequently discovered he had thrown twelve packets of heroin on the ground. Yurkovic eventually tackled defendant and placed him under arrest.

That same day, Yurkovic submitted an application to a municipal court judge for a drug offender restraining order. In a supporting certification, Yurkovic stated that defendant was charged with possession of a controlled dangerous substance with intent to distribute and that the offense occurred at George and Hassart Streets. Yurkovic explained that he sought the restraining order for that location because the drugs would have been discovered incident to defendant's arrest if he had not fled and discarded the drugs.

The restraining order issued by the municipal court judge on August 15, 2008, prohibited defendant from being within 500 feet of the intersection of George Street and Hassart Street in New Brunswick. According to Yurkovic, he did not immediately serve defendant with the restraining order because defendant was taken to the Middlesex County jail after he was processed. Therefore, there was "no urgency to get [the order] to him."

Yurkovic testified he personally served defendant with the restraining order on December 17, 2008. At that time, Yurkovic explained to defendant the order prohibited him from being within 500 feet of the corner of George and Hassart Streets. At Yurkovic's request, defendant signed and dated the order, and defendant was given a copy of the order. The order that defendant signed clearly states

Notice to Defendant: Violation of the provisions of this order constitutes criminal contempt pursuant to N.J.S.A. 2C:29-9 and will result in your arrest and criminal prosecution and can also result in a revocation of bail. This may result in a jail sentence. ONLY A COURT CAN MODIFY ANY OF THE TERMS OR CONDITIONS OF THIS COURT ORDER.

Five days later, on December 22, 2008, Liszczak was on patrol when he observed defendant standing on the corner of George Street and Hassart Street. Liszczak was aware of defendant's restraining order and, after checking to confirm that the order was still active, he arrested defendant for violating the order.

[Steele, supra, slip op. at 2-4]

After the State rested its case, defendant decided not to testify or call any witnesses in his own defense. On summation, defense counsel framed the issues for the jury as follows: (1) whether the State proved beyond a reasonable doubt that defendant "was properly served with the order[;]" and (2) whether the order "explained fully the areas where [defendant] was not supposed to go[.]"

Defendant argues that the PCR judge erred when she rejected his petition without affording his attorney the right to present oral argument. We agree. In Parker, the Court held

[W]hen the trial judge . . . reach[es] the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary. A general reference to the issues not being particularly complex is not helpful to a reviewing court when a defendant later appeals on the basis that the denial of oral argument was an abuse of the trial judge's discretion.

[Parker, supra, 212 N.J. at 282-283.]

The Court has consistently enforced its holding in Parker whenever the trial court's rulings have failed to include a "statement of reasons for not providing oral argument on [an] initial petition for post-conviction relief." State v. Morales, ____ N.J. ____ (2016); see also State v. J.R., 226 N.J. 210 (2016); State v. Daniels, 225 N.J. 338 (2016); State v. Scott, 225 N.J. 337 (2016); State v. Mitchell, 217 N.J. 300 (2014).

Thus, pursuant to the Court's holding in Parker, we vacate the order denying PCR and remand this matter for the purpose of permitting PCR counsel to present oral argument to the PCR court. We do not retain jurisdiction.