STATE OF NEW JERSEY v. ABDUL GRIGGS

NOT FOR PUBLICATION WITHOUT THE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-0310-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ABDUL GRIGGS, a/k/a
ABDUL B. GRIGGS, a/k/a
ABDUL BATES GRIGGS, a/k/a
ABDUL BATI GRIGGS, a/k/a
ABDUL BATIN GRIGGS, a/k/a
ABDUL I. GRIGGS, a/k/a
ABDUL K. GRIGGS, a/k/a
ABDUL R. GRIGGS a/k/a
ABDULBATI GRIGGS, a/k/a
ABDULBATI I. GRIGGS, a/k/a
IBINISHM GRIGGSABDULBATIN,
a/k/a BATEEN, a/k/a BATI and
a/k/a BATIN,

        Defendant-Appellant.

__________________________________

              Submitted February 1, 2018 – Decided March 8, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment Nos.
              07-01-0015 and 07-01-0016.
             Joseph E. Krakora, Public Defender, attorney
             for appellant (William Welaj, Designated
             Counsel, on the brief).

             Ann M. Luvera, Acting Union County Prosecutor,
             attorney for respondent (N. Christine Mansour,
             Special    Deputy   Attorney    General/Acting
             Assistant Prosecutor, of counsel and on the
             brief).

PER CURIAM

     Defendant, Abdul Griggs, appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary

hearing.     For the reasons that follow, we affirm.

     After a first trial ended in a mistrial, a second jury

convicted defendant of murder, 
N.J.S.A. 2C:11-3(a)(1) and (2), and

various    weapons    offenses    under     
N.J.S.A.   2C:39-4(a),    
N.J.S.A.

2C:39-5(b) and 
N.J.S.A. 2C:39-7(b).           The sentencing court imposed

an aggregate sentence of life imprisonment, plus ten years, subject

first to a No Early Release Act, 
N.J.S.A. 2C:43-7.2, parole

disqualifier and then a consecutive five-year period of parole

ineligibility.

     Defendant       appealed    and   we   affirmed   his    convictions   and

sentence in an unpublished opinion.           State v. Griggs, No. A-3814-

10 (App. Div. July 17, 2014) (slip op. at 21).               The Supreme Court

denied his petition for certification.           State v. Griggs, 
220 N.J.
 209 (2015).



                                        2                              A-0310-16T3
      The facts underlying defendant's convictions are set forth

in our earlier opinion and need not be repeated here.            See Griggs,

slip op. at 5-6.

      Defendant filed a PCR petition on March 16, 2015, in which

he argued ineffective assistance of trial and appellate counsel.

He cited to ten issues he found with counsel's performance: failure

to object to certain expert testimony; allowing the jury to hear

a witness refer to defendant's "[l]ast [t]rial"; failure to conduct

pre-trial investigation; failure to call a handwriting expert;

failure "to investigate [the] crime scene"; failure "to insure

that defendant received a fair trial"; failure to file a motion

"to   suppress    witnesses[']   unsigned      statements    they    testified

to[]"; failure to call an expert forensic pathologist; and allowing

witnesses to testify to hearsay.

      PCR counsel submitted a brief on behalf of defendant on

November 22, 2015.     In this brief, defendant claimed trial counsel

failed    to     "investigate,   communicate,        prepare    or    explain

. . . trial      strategy   . . . or       object   during   trial[,]"     file

necessary motions to prevent admission of "highly prejudicial

evidence[,]" "file a motion or object to the testimony of" the

deputy medical examiner about "stippling" marks, or communicate

defendant's "wishes for a negotiated plea following [his] first

trial."

                                       3                               A-0310-16T3
       Judge Scott J. Moynihan denied defendant's petition by order

dated August 4, 2016.       The judge issued a comprehensive, fifteen-

page   written   decision    setting   forth   his   reasons   for   denying

defendant's petition without an evidentiary hearing.

       On appeal, defendant presents the following arguments:

                 POINT I:

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

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

                      B.   THE DEFENDANT DID NOT
                 RECEIVE        ADEQUATE       LEGAL
                 REPRESENTATION FROM TRIAL COUNSEL
                 AS A RESULT OF COUNSEL'S FAILURE TO
                 EFFECTIVELY ATTEMPT TO FACILITATE A
                 MUTUALLY ACCEPTABLE PLEA AGREEMENT
                 BETWEEN HIS CLIENT AND THE STATE
                 FOLLOWING THE FIRST TRIAL, WHICH
                 ENDED IN A MISTRIAL DUE TO THE
                 JURY'S   INABILITY   TO   REACH   A
                 UNANIMOUS VERDICT.

                      C.   THE DEFENDANT DID NOT
                 RECEIVE        ADEQUATE       LEGAL
                 REPRESENTATION FROM TRIAL COUNSEL
                 AS A RESULT OF COUNSEL'S CONDUCT
                 ELICITING TESTIMONY DURING CROSS-
                 EXAMINATION OF THE MEDICAL EXAMINER
                 INDICATING THERE HAD BEEN A "PRIOR

                                       4                             A-0310-16T3
               TRIAL", A REFERENCE OMITTED BY THE
               TRIAL COURT IN REJECTING THIS ASPECT
               OF THE DEFENDANT'S PETITION.

     We are not persuaded by any of these arguments and affirm.

     The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was formulated

in Strickland v. Washington, 
466 U.S. 668, 687 (1984), and adopted

by our Supreme Court in State v. Fritz, l
05 N.J. 42, 49 (l987).

In order to prevail on a claim of ineffective assistance of

counsel, defendant must meet the two-prong test of establishing

both that: (l) counsel's performance was deficient and he or she

made errors that were so egregious that counsel was not functioning

effectively as guaranteed by the Sixth Amendment to the United

States Constitution; and (2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 
466 U.S.  at 687, 694.

     We conclude 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 expressed by Judge Moynihan in his thorough written

decision, as we agree with the judge that defendant failed to make

a prima facie showing of ineffectiveness of counsel within the

                                5                           A-0310-16T3
Strickland-Fritz test, and therefore an evidentiary hearing was

not warranted. See State v. Preciose, 
129 N.J. 452, 462-63 (1992).

     Affirmed.




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