STATEOF NEW JERSEY v. RAYMOND MARTIN

NOT FOR PUBLICATION WITHOUT THE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-0925-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAYMOND MARTIN,

        Defendant-Appellant.


              Submitted February 6, 2018 – Decided February 20, 2018

              Before Judges Carroll and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              05-06-0501.

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

              Michael   H.   Robertson,    Somerset   County
              Prosecutor, attorney for respondent (Lauren R.
              Casale, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant Raymond Martin appeals from the denial of his

petition for post-conviction relief (PCR) following an evidentiary
hearing.       Defendant     contends      his   trial       counsel   rendered

ineffective assistance.       We affirm.

     In June 2005, a Somerset County grand jury returned Indictment

No. 05-06-0501, charging defendant with third-degree distribution

of cocaine, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3)

(counts one to three); and third-degree resisting arrest, 
N.J.S.A.

2C:29-2(a) (count four).       Defendant was tried before a jury.              He

was convicted on all counts and sentenced to a three-year prison

term.

     On direct appeal, we determined "that the trial court [had]

mistakenly exercised its discretion when it insisted at 4:00 p.m.

that defendant could not ponder overnight whether to take the

stand."    State v. Martin, No. A-4341-07 (App. Div. April 29, 2009)

(slip   op.   at   6-7).     Consequently,       we   reversed     defendant's

convictions and remanded for a new trial.             Id. at 8.

     Defendant     was     again   tried     before      a    jury.      During

deliberations, the jury indicated it was deadlocked, and the judge

declared a mistrial.

     A third jury trial followed, before the same judge who

presided at the earlier trials.         Defendant was represented by the

same attorney who represented him during the second trial.                   The

jury found defendant guilty on all counts, and the judge again

imposed a three-year prison term.

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On direct appeal, defendant raised the following arguments:

    POINT I
    THE   TRIAL   JUDGE’S  CONDUCT   DURING   JURY
    SELECTION AND THE TRIAL DEPRIVED [DEFENDANT]
    OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS
    TO A FAIR TRIAL. (Partially Raised Below)

    POINT II
    THE TRIAL JUDGE'S IMPROPER DISMISSAL AND
    TREATMENT OF A HISPANIC-AMERICAN POTENTIAL
    JUROR CONTAMINATED THE IMPANELED JURY WITH
    RACIAL BIAS, UNFAIRLY DEPRIVED THAT JUROR OF
    HIS RIGHT TO SERVE, AND DEPRIVED [DEFENDANT]
    OF HIS RIGHT TO AN IMPARTIAL JURY. (Not Raised
    Below)

    POINT III
    SEVERAL OF THE TRIAL JUDGE'S EVIDENTIARY
    RULINGS VIOLATED THE RULES OF EVIDENCE AND
    THEREBY DEPRIVED [DEFENDANT] OF HIS SIXTH
    AMENDMENT RIGHT TO CONFRONT WITNESSES ON
    CROSS-EXAMINATION.

    POINT IV
    THE TRIAL JUDGE ERRED IN STATING THAT EVIDENCE
    OF FLIGHT MUST BE USED BY THE JURY TO INFER
    CONSCIOUSNESS OF GUILT AND IN FAILING TO
    INCORPORATE [DEFENDANT'S] EXPLANATION OF HIS
    ACTIONS INTO THE CHARGE. (Not Raised Below)

    POINT V
    THE TRIAL JUDGE ERRED IN ADMITTING THE T-
    MOBILE PHONE RECORDS PURSUANT TO THE N.J.R.E.
    803(c)(6) EXCEPTION TO [THE RULE AGAINST
    HEARSAY].

    POINT VI
    THE TRIAL JUDGE'S DECISION TO ALLOW THE JURY
    TO TAKE THE AUDIO RECORDINGS OF THE UNDERCOVER
    OFFICER'S CALLS ARRANGING THE CDS PURCHASES
    INTO THE JURY ROOM UNSUPERVISED, CONSTITUTES
    REVERSIBLE ERROR. (Not Raised Below)



                          3                          A-0925-16T2
            [State v. Martin, No. A-2693-12 (App. Div.
            March 31, 2015) (slip op. at 5-6).]

We   rejected   each   of   defendant's    arguments,   and       affirmed   his

convictions.    Id. at 22.1    Defendant's petition for certification

was thereafter denied by the Supreme Court.          State v. Martin, 
222 N.J. 18 (2015).

      Defendant,   represented     by     counsel,   filed    a    timely    PCR

petition.    Defendant contended he received ineffective assistance

of counsel at trial because his attorney (1) failed to move to

recuse the trial judge; (2) failed to object to the trial judge's

improper dismissal and disparate treatment of a Hispanic potential

juror; (3) failed to seek a mistrial or limiting instruction after

the trial judge asked a State's witness his race; (4) failed to

object to the flight charge; (5) failed to object to the jury

being allowed to take the audio recordings of the undercover

officer's calls arranging drug purchases with defendant into the

jury room;      (6) failed to object to the undercover officer's

testimony about the existence of a confidential informant who was

in the vehicle he used during the first drug buy; (7) failed to

advise defendant of his right to seek immigration counsel; (8)

failed to investigate the existence of surveillance cameras at



1
   We need not recite the testimony from the trial, which is
extensively detailed in our prior opinion.

                                     4                                  A-0925-16T2
Walmart and Rhythms during the time of the undercover drug buys;

and (9) failed to have the recording of the phone conversations

with the undercover officer analyzed.

     Judge Kathy C. Qasim, who was not the trial judge, ordered

an evidentiary hearing on the petition.         Defendant was the sole

witness to testify at the June 14, 2016 hearing.                After the

summations of PCR counsel and the prosecutor, Judge Qasim set

forth her findings and conclusions in a comprehensive thirty-three

page written opinion dated July 11, 2016.            The judge cited the

appropriate two-prong test regarding evaluation of a claim of

ineffective assistance of counsel as enunciated in Strickland v.

Washington, 
466 U.S. 668, 687 (1984), and adopted by our Supreme

Court in State v. Fritz, 
105 N.J. 42, 58 (1987).2

     Judge Qasim initially addressed defendant's first five claims

of ineffective assistance of counsel, enumerated above.         The judge

cited   our   earlier   opinion,   and   concluded    these   claims   were

procedurally barred under Rule 3:22-53 because they were rooted in

similar claims defendant raised, and we rejected, on direct appeal.


2
    The Strickland test requires a defendant to show that the
performance of his attorney was deficient, and counsel's deficient
performance prejudiced the defense. Strickland, 
466 U.S.  at 687.

3 Rule 3:22-5 provides that "[a] prior adjudication upon the
merits of any ground for relief is conclusive whether made in the
proceedings resulting in the conviction or in any post-conviction


                                    5                              A-0925-16T2
     The   judge    then   carefully       analyzed   each     of   defendant's

remaining claims of ineffective assistance, enumerated six through

nine above.      After reviewing the trial record, and the evidence

and testimony presented at the PCR hearing, Judge Qasim found

defendant's claims failed both individually and cumulatively to

satisfy the standard for relief set forth in Strickland.

     In    his   present   appeal,   defendant        raises    the   following

arguments:

            POINT ONE

            THE TRIAL COURT IMPROPERLY FOUND DEFENDANT'S
            CLAIMS TO BE PROCEDURALLY BARRED.

            POINT TWO

            THE TRIAL JUDGE IMPROPERLY DENIED DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF.

            A. Recusal of the Trial Judge

            B. Defendant's Immigration Consequences

            C. Trial Counsel's Investigation

            D. Counsel's Conduct of the Trial

            E. Cumulative Error




proceeding. . . ." Rule 3:22-5 thus bars from further litigation
through a PCR petition claims that were actually considered and
decided in a prior proceeding. State v. Marshall, 
173 N.J. 343,
350-53 (2002); State v. McQuaid, 
147 N.J. 464, 484 (1997).


                                       6                                A-0925-16T2
     Our canvass of the record reveals that Judge Qasim's analysis

of these issues was comprehensive and correct, and we discern no

basis to disturb her findings and conclusions. We therefore affirm

substantially for the reasons expressed by Judge Qasim in her

thorough and well-reasoned written opinion.

     Affirmed.




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