STATE OF NEW JERSEY v. ISMAEL BINBOW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2767-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISMAEL BINBOW,

Defendant-Appellant.

_____________________________

January 13, 2017

Submitted October 20, 2016 Decided

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3317.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ismael Binbow appeals from an August 28, 2014 Law Division order denying his petition for post-conviction relief (PCR). On appeal, defendant argues

POINT I.

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT HAS SET FORTH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. The Strickland Standard for Ineffective Assistance of Counsel

B. Defendant's Trial Counsel Rendered Ineffective Assistance of Counsel

1. Counsel Failed to Move to Dismiss the Indictment for Prosecutorial Misconduct Based Upon the Presentation of Improper Testimony of Officer Dumeng to the Grand Jury.

2. Counsel Failed to Proceed with a Motion to Suppress Physical Evidence.

3. Counsel Failed to Effectively Cross-Examine Officer Dumeng.

4. Counsel Failed to Investigate Defenses and/or Alibi Evidence and Failed to Prepare for Trial.

5. Counsel Failed to Advise Defendant of the State's Plea Offer.

6. Counsel Failed to Properly Advise the Defendant of his Right to Testify at Trial.

C. Defendant's Appellate Counsel Rendered Ineffective Assistance of Counsel.

POINT II.

THE PCR COURT ABUSED ITS DISCRETION BY FINDING THAT THE DEFENDANT'S CLAIM RELATING TO COUNSEL'S FAILURE TO DISMISS THE INDICTMENT IS BARRED BY R. 3:22-4.

We affirm.

The facts surrounding defendant and his co-defendant's trial and conviction on illicit narcotics charges are set forth in our unpublished opinion, which we incorporate by reference. State v. Binbow, No. A-2804-09 (App. Div. June 7, 2011) slip op. 3-7. On direct appeal, this court affirmed defendant's conviction and sentence. Id. at 25. The Supreme Court denied certification. 208 N.J. 598 (2011).

Defendant filed a petition for PCR on June 13, 2012. He argued trial counsel rendered ineffective assistance: (1) by failing to investigate testimony of a defense witness; (2) because cross-examination of the arresting officer was "ineffective"; (3) when he did not move to suppress the drug evidence; and (4) as he did not seek an in camera review of the arresting officer's personnel records. A supporting brief filed by counsel to support PCR raised five additional arguments, including: (1) the indictment should have been dismissed because false, inaccurate and/or misleading evidence was presented to the Grand Jury; (2) police lacked probable cause or even reasonable suspicion to detain defendant making his arrest and search unconstitutional; (3) defendant was deprived of his right of cross-examination; (4) defendant was deprived of his constitutional right to testify on his own behalf; and (5) trial counsel failed to inform defendant of a plea offer extended by the State.

In an August 28, 2014 written opinion, Judge Martin Cronin found no basis to order an evidentiary hearing and denied defendant's petition. This appeal ensued.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test). To establish a prima facie case of ineffective assistance of counsel

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "th[e] test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (internal quotation marks and citation omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

We defer to the motion judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). See State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interest of justice demand intervention and correction.") (internal quotation marks and citation omitted). Legal conclusions which flow from those facts, however, are reviewed de novo. Nash, supra, 212 N.J. at 540-41.

Turning to defendant's arguments, he first maintains counsel failed to seek dismissal of the indictment when the arresting officer's trial testimony differed from his grand jury statements. More specifically, the officer told the grand jury he observed defendant hand a block of heroin to co-defendant, who after seeing police, threw the heroin into defendant's car and walked away. However, at trial, the same officer stated he did not see defendant initially hand co-defendant the heroin, rather he only observed co-defendant holding the drugs and throw the brick into defendant's car when he spied police.

Defendant recognizes challenges to a defective indictment are ordinarily waived unless raised prior to trial. See R. 3:10-2(c). However, he urges this bar should not apply as a matter of fundamental justice because had a motion to dismiss been made, it would have been granted. Ibid. ("[F]ailure to present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver."). We are not persuaded.

"In seeking an indictment, the prosecutor's sole evidential obligation is to present a prima facie case that the accused has committed a crime." State v. Hogan, 144 N.J. 216, 236 (1996). See also State v. Perry, 124 N.J. 128, 168 (1991) ("'[T]he decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor's] discretion.'" (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604, 611 (1978))). A court "should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison, 188 N.J. 2, 12 (2006) (citing Hogan, supra, 144 N.J. at 236; State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987)).

It is not the role of a reviewing court to question the strength of the case, its possible deterrent value, or the government's enforcement priorities. Ibid. Nonetheless, the reviewing court's responsibility remains to examine whether "an indictment alleges all the essential facts of the crime[.]" State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 19 (1984).

During the PCR motion hearing, it was conceded that after excluding the arresting officer's statement he saw defendant hand

co-defendant the brick of heroin, the remaining evidence sufficiently satisfied each element of the offenses charged and the facts viewed in the light most favorable to the State, allowed the grand jury to reasonably believe a crime occurred and defendant committed it. Morrison, supra, 188 N.J. 2, 13 (2006) (citing State v. Reyes, 50 N.J. 454, 459 (1967)).

In this light and applying the applicable standards, a motion to dismiss the indictment as legally insufficient would not have succeeded. Accordingly, a claim counsel was ineffective for not filing such a motion is unfounded.

Defendant further claims prosecutorial misconduct in presenting false testimony to the grand jury and not disclosing this fact to the defendant warrants dismissal. This argument is rejected.

First and foremost, as Judge Cronin noted, there was no evidence the prosecutor had actual knowledge the testimony before the grand jury was inaccurate. See Hogan, supra, 144 N.J. at 238 ("only when the prosecuting attorney has actual knowledge of clearly exculpatory evidence that directly negates guilt must such evidence be presented to the grand jury.")

Second, the variation in the officer's observation alone is neither "clearly exculpatory" nor does it "directly negate[] guilt" because the State's remaining evidence established the elements of the offenses changed. Most specifically, after co-defendant threw the brick of heroin into defendant's car, he drove off, attempting to evade arrest and was also observed running away from his crashed vehicle, carrying the brick, which he threw over a fence.

Defendant's piecemeal attack on the evidence was properly rejected by Judge Cronin, who considered the totality of the State's proofs. He properly reviewed and rejected PCR on this basis.

Although the substance of the claim is found lacking, we further note the claim is procedurally barred. PCR "is not a substitute for direct appeal." State v. Echols, 199 N.J. 344, 357 (2009) (citation omitted). Because defendant was fully aware of the facts, he could have, and should have, presented the issue on direct appeal. Rule 3:22-4 prohibits a defendant from raising any issue in a petition for PCR, which could have been raised on direct appeal. State v. Mitchell, 126 N.J. 565, 583 (1992); State v. Moore, 273 N.J. Super. 118, 126 (App. Div.), certif. denied, 137 N.J. 311 (1994).

A related challenge also cites inconsistencies in the arresting officer's trial and grand jury testimony, asserting, despite this "critical inconsistency" trial counsel failed to "thoroughly and effectively" impeach the witness during cross-examination. He contends the PCR judge erred in concluding cross-examination fell within a legitimate legal strategy, see State v. Arthur, 184, N.J. 307, 322 (2005) (holding a trial attorney's tactical decisions are entitled to "extreme deference") (citations omitted), and urges reversal because trial counsel's performance fell "below an objective standard of reasonableness." See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The Sixth Amendment to the Constitution and Article 1, Section 10 of the New Jersey Constitution guarantees defendant the right to confront those who testify against them. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974); State v. Maben, 132 N.J. 487, 496 (1993). The right of confrontation includes the right to cross-examine witnesses. State v. Williams, 182 N.J. Super. 427, 434 (App. Div. 1982).

It is well-established that a decision whether to cross-examine a witness falls within trial counsel's discretion. Gov't of the V.I. v. Weatherwax, 77 F.3d 1425, 1433-35 (3d Cir. 1996). "In matters of trial strategy, we accord great deference to the decisions of counsel." State v. Biegenwald, 126 N.J. 1, 56 (1991). "Which witnesses to cross-examine and the nature of the questions asked fall within this broad zone of attorney discretion." State v. Hightower, 120 N.J. 378, 432 (1990). Such "[d]ecisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds . . . ." State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).

In reviewing PCR denials, our review remains "highly deferential" when scrutinizing trial counsel's performance, we avoid consideration of counsel's performance "under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (citations omitted).

Here, we agree with Judge Cronin, defendant's challenges merely attack trial strategy and fails to establish ineffective assistance. The judge stated

The choice between (1) direct trial testimony favorable to the defendant or (2) impeaching the credibility of that witness who gave this favorable testimony is clearly a "tactical" decision of the trial counsel which the court must accord broad deference. See Strickland, 466 U.S. at 690-91. The tactical nature of this decision is apparent because the impeaching grand jury testimony is arguably more incriminating then the allegedly inconsistent trial testimony. . . . [T]he trial witness could have clarified that this prior testimony (of a full exchange) was indeed accurate.

Suffice it to say, defendant's claim falls short of the required proofs to obtain PCR relief. Defendant not only failed to show the particular manner in which counsel's cross-examination was deficient, but also failed to show how the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.

Next, is the assertion trial counsel was ineffective when he withdrew the motion to suppress physical evidence, which had been filed by his predecessor. Proclaiming his innocence, defendant argues a suppression motion would have been meritorious and its withdrawal demonstrated ineffective assistance. We disagree.

To be successful, defendant must show suppression would have been successful. This requires proof suppression was required because there was no probable cause to arrest or conduct a search making counsel's failure to challenge to the search was such a serious error it rose to ineffective assistance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant relies on testimony from co-defendant's trial witnesses, who stated co-defendant did not approach defendant's car. From this evidence, defendant maintains a drug transaction did not occur.

A defendant must offer more than conclusory assertions of an unconstitutional search or seizure. State v. Hewins, 166, N.J. Super. 210, 213 (Law. Div. 1979). If the State alleges certain facts which support the legitimacy of the search, and the defendant does not challenge those facts, the suppression motion can be decided without an evidentiary hearing. State v. Green, 346 N.J. Super. 87, 101-02 (App. Div. 2001).

Judge Cronin properly reviewed all evidence including the events following the police observation of an interaction between defendant and co-defendant and found the facts supported probable cause. Further, he concluded the warrantless search, seizure of drugs and cash were constitutionally valid under several exceptions to the warrant requirement. He rejected defendant's arguments to the contrary as not supported by law. We rely on his thorough reasoned analysis of this issue. R. 2:11-3(e)(2).

Defendant also maintains counsel improperly performed pre-trial investigation, by not securing a surveillance video from a camera located outside a school in the area of the drug transaction. Evidence filed by defendant's sister shows the camera was operational, but when the inquiry was finally made, the tape was no longer available. Defendant asserts the video contained potentially exculpatory evidence, which would show he was not involved in a drug sale with co-defendant.

Defendant also suggests alibi witnesses were not interviewed. The testimony of these potential witnesses was offered at trial by co-defendant. The witnesses insisted co-defendant did not engage in a drug transaction with defendant.

Also, defendant argues trial counsel failed to request an in camera review of the personnel files for officers involved in the arrest. He produced a 2006 news article stating two of the arresting officers had previously been investigated by internal affairs.

The defendant's right to a "vigorous defense" means defense counsel must "investigate all substantial defenses available." State v. Russo, 333 N.J. Super. 119, 140-41 (App. Div. 2000). The failure to conduct pre-trial investigation may give rise to a claim of ineffective assistance of counsel. Preciose, supra, 129, N.J. at 464. A defendant must provide more than "bald assertions" to support a request for PCR. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 2003). Importantly, a 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." Ibid. Mere speculation suggesting evidence might be exculpatory is insufficient. Fritz, supra, 105 N.J. at 63. Defendant offers exactly this kind of speculative evidence.

Defendant's proof show a camera was in the area. He also showed the video tape was no longer available. What he omits, however, is whether the camera was placed in a way to have captured the alleged transaction and what the tape would have shown. He also offers no evidence regarding the retention policy to show the tapes would have been available had a timely request been made. Defendant's argument rises no higher than speculation, which is insufficient to support PCR. Cummings, supra, 321 N.J. Super. at 170.

Regarding the witnesses' testimony, defendant has not identified what evidence would have been offered beyond the witnesses' trial testimony. No certifications accompany the PCR petition setting forth the alleged omitted evidence and alibi. The claims are rejected as speculative. Ibid.

Defendant also cites counsel's failure to advise him of the State's plea offer as warranting PCR. Counsel has an obligation to communicate a plea offer. State v. Powell, 294 N.J. Super. 557 564 (App. Div. 1996). When trial counsel fails to inform a client of a plea offer, a defendant has satisfied the first prong of Strickland, by rendering deficient performance. Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 1409, 182 L. Ed. 2d 379, 392 (2012). See also LaFler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012) ("If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.").

Here, the record belies defendant's contentions. Immediately prior to jury selection, the judge inquired about the plea offer. Counsel explained the offer terms discussed with defendant, which were a period of eight years in prison with either a thirty-six or a forty-two-month period of parole ineligibility. Counsel's comments show the offer was communicated to and discussed with defendant. The prosecutor then interjected, the plea offer was contingent on co-defendant also pleading guilty and because both elected to proceed with trial, the offer had been withdrawn several months earlier at the time the trial date was set. It cannot be overlooked, as stated in defendant's brief: "defendant has consistently professed his innocence throughout the proceedings." This defense aligns with his rejection of any plea offered. The issue was fully and properly considered by Judge Cronin. We have no basis to intervene.

Equally unavailing is defendant's claim he was not informed of his right to testify. Alternatively, he states counsel told him not to testify, because his prior criminal record would be subject to examination and "he would lose." Defendant's certification filed with his PCR petition stated he was unaware the decision to testify was his alone and he believed he was bound by his attorney's advice.

Defendant's claims are factually unsupported and legally unavailing. The record shows the decision not to testify was made by defendant and counsel's remarks candidly informing defendant of the risks faced when testifying in no way alter the voluntariness of his choice.

During trial, the judge addressed defendant directly

THE COURT: Alright, sir. And have you had the opportunity to discuss in detail the right that you have to testify and the right that you have not to testify with you[r] attorney, Mr. Fitsimmons?

[DEFENDANT]: Yes, sir.

THE COURT: And, Mr. Binbow, what is your decision?

[DEFENDANT]: I wish not to testify.

Defendant was informed of his right to testify, consulted with counsel on the issue, and decided he would exercise his right not to take the stand. See State v. Savage, 120 N.J. 594, 631 (1990). No basis for PCR relief is shown.

Defendant also attacks appellate counsel's performance. He asserts appellate counsel rendered ineffective assistance because he did not raise "meritorious arguments" on appeal. See State v. Morrison, 215 N.J. Super. 540, 545 (App. Div. 1987) (holding due process guarantees a criminal defendant effective assistance of counsel on a first appeal as of right) (citing Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985)). These claims are examined under Strickland's ineffective assistance of counsel standard. State v. Guzman, 313 N.J. Super. 363, 374 (App. Div.), certif. denied, 156 N.J. 424 (1998); State v. Buonadonna, 122 N.J. 22, 41 (1991).

Although accepting appellate counsel should have at least listed defendant's arguments suggesting trial counsel "failed to move to dismiss the indictment for prosecutorial misconduct based upon the presentation of improper testimony of [the arresting officer]" and trial counsel wrongly withdrew the motion to suppress, we nevertheless cannot agree PCR was warranted. "The 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, 446 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). When "there is no basis for reversing [a] conviction on the grounds asserted, there is no basis for finding that defendant was denied the effective assistance of counsel." State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008). As our analysis reflects, there is no substantive grounds supporting defendant's claim trial counsel rendered ineffective assistance. Therefore, appellate counsel's omission in raising these arguments would not have altered the final outcome.

Affirmed.