STATE OF NEW JERSEY v. KARRIEM SANCHEZ

NOT FOR PUBLICATION WITHOUT THE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-1059-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KARRIEM SANCHEZ, a/k/a HAKEEM
BANKS, KAREEM BANKS, KARIEEM BLEY,
KARRIEM SIMMONS, TERRANCE SIMMONS,
NAJIE SMITH and HAKEEM WILLIAMS,

        Defendant-Appellant.


              Submitted February 12, 2018 – Decided March 6, 2018

              Before Judges Sabatino and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              10-03-0788.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Anthony J. Vecchio, Designated
              Counsel, on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Stephen
              A.    Pogany,   Special    Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     Defendant Karriem Sanchez appeals from a September 7, 2016

order denying his petition for post-conviction relief ("PCR")

following an evidentiary hearing.       We affirm.

     We incorporate by reference the facts and procedural history

set forth in our prior unpublished opinion.      State v. Sanchez, No.

A-2991-11 (App. Div. Dec 3, 2013) (slip op. at 1-6).          Briefly,

following a jury trial, defendant was convicted of second-degree

conspiracy to possess with intent to distribute heroin, 
N.J.S.A.

2C:5-2 (count one); third-degree possession of heroin, 
N.J.S.A.

2C:35-10(a)(1) (count two); third-degree possession of heroin with

intent to distribute, 
N.J.S.A. 2C:35-5(a)(l) and 
N.J.S.A. 2C:35-

5(b)(3) (count three); third-degree possession of heroin with

intent to distribute within 1000 feet of school property, 
N.J.S.A.

2C:35-7 (count four); and second-degree possession of heroin with

intent to distribute within 500 feet of a public housing facility,


N.J.S.A. 2C:35-7.1 (count five).       After merging counts one through

four with count five, the trial judge sentenced defendant to a

sixteen-year term of imprisonment, with eight years of parole

ineligibility pursuant to the Graves Act, 
N.J.S.A. 2C:43-6(f).

     Defendant's conviction was upheld on direct appeal.      Sanchez,

slip op. at 28.   However, we remanded for resentencing within the




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second-degree range.1      Ibid.    The Supreme Court thereafter denied

certification.    State v. Sanchez, 
218 N.J. 274 (2014).

      Defendant   then    filed    the   present      PCR   petition,    alleging

ineffective assistance of his trial counsel. In essence, defendant

alleged his attorney failed to:          file pre-trial motions, including

a motion to dismiss the indictment, a motion for severance, and a

motion for the personnel file of the lead detective; raise a

meritorious argument during the suppression hearing; investigate

and   prepare   for    trial;   impeach       the    lead   detective   with   his

inconsistent grand jury testimony; and interview key witnesses

prior to the day of the trial.

      The PCR judge held a two-day evidentiary hearing in August

2016.   Defendant and his former attorney testified at the hearing.

      Defendant       elaborated    upon       his     perceived    ineffective

assistance of counsel claims.                Although he advised his former

trial counsel he had filed an internal affairs complaint against

the lead detective, she failed to pursue an investigation or file

a motion to obtain the detective's personnel file.                      Defendant

testified further that, when his trial concluded, he conducted his

own investigation while in prison and discovered an American Civil




1
  Defendant's sentence after remand is not referenced in the
record.

                                         3                                A-1059-16T4
Liberties    Union   complaint   filed       against   the   lead   detective

pertaining to the false arrest of a journalist.

       During cross-examination, defendant admitted he was present

in the courtroom and aware that co-defendant's counsel filed a

motion to disclose the lead detective's internal affairs file.

Defendant claimed he was unaware that the court denied the motion

because the detective's disciplinary record pertained to the false

arrest of a journalist, and not a drug crime.                Moreover, trial

counsel testified she had joined in co-defendant's motion for the

detective's personnel file.

       Defendant claimed further his trial counsel had failed to

interview several witnesses until the day of trial.             As a result,

defendant argued they were not prepared for questions on cross-

examination.    In her own PCR testimony, trial counsel countered

she had interviewed co-defendant Lateisha Lawrence "numerous"

times during the two years prior to her testimony at trial.

Counsel also testified she interviewed two other witnesses before

they    testified    and   discussed       their   trial   preparation    with

defendant.

       Trial counsel stated she had not filed a motion to dismiss

the indictment or a motion for severance because she did not

believe either motion had merit.           Specifically, she did not think

it was prudent to "file motions just for the sake of filing them."

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     On September 7, 2016, the PCR judge rendered an oral decision

denying defendant's petition.         This appeal followed.

     On appeal, defendant raises the following points for our

consideration:

           DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
           COUNSEL BOTH BEFORE AND DURING HIS TRIAL.

           POINT I

           Trial counsel failed to conduct an adequate
           pre-trial investigation.

           POINT II

           Trial   counsel's  performance  during  the
           suppression hearing constituted ineffective
           assistance of counsel.

           POINT III

           Trial counsel was ineffective for failing to
           file a motion to dismiss the indictment.

           POINT IV

           Trial counsel failed to effectively cross-
           examine [the lead detective] at trial.

     Our   review    of   a   PCR   claim   after   a   court   has   held     an

evidentiary   hearing     "is   necessarily   deferential       to   [the]   PCR

court's factual findings based on its review of live witness

testimony."   State v. Nash, 
212 N.J. 518, 540 (2013); see also

State v. O'Donnell, 
435 N.J. Super. 351, 373 (App. Div. 2014) ("If

a court has conducted an evidentiary hearing on a petition for

PCR, we necessarily defer to the trial court's factual findings.").

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Where an evidentiary hearing has been held, we should not disturb

"'the   PCR   court's      findings   that       are     supported   by   sufficient

credible evidence in the record.'"               State v. Pierre, 
223 N.J. 560,

576 (2015) (quoting Nash, 
212 N.J. at 540).                   We review any legal

conclusions of the trial court de novo.                   Nash, 
212 N.J. at 540-

41; State v. Harris, 
181 N.J. 391, 419 (2004).

       "[A] defendant asserting ineffective assistance of counsel

on PCR bears the burden of proving his or her right to relief by

a preponderance of the evidence."               State v. Gaitan, 
209 N.J. 339,

350 (2012).        A defendant must prove counsel's performance was

deficient; it must be demonstrated that counsel's handling of the

matter "fell below an objective standard of reasonableness" and

that    "counsel    made    errors    so       serious    that   counsel    was   not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland v. Washington, 
466 U.S. 668, 687-88 (1984);

State v. Fritz, 
105 N.J. 42, 58 (1987) (adopting the Strickland

two-part test in New Jersey).

       A defendant must also prove counsel's "deficient performance

prejudiced the defense."        Strickland, 
466 U.S.  at 687.               Prejudice

is established by showing a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different."           Id. at 694.           Thus, petitioner must

establish that counsel's performance was deficient and petitioner

                                           6                                 A-1059-16T4
suffered prejudice in order to obtain a reversal of the challenged

conviction.      Id. at 687; Fritz, 
105 N.J. at 52.

     We have carefully considered defendant's arguments in light

of the applicable law, and conclude they lack sufficient merit to

warrant discussion in a written opinion.               R. 2:11-3(e)(2).          We

affirm substantially for the reasons stated by the PCR judge in

his thorough oral opinion of September 7, 2016.                We add only the

following comments.

     The       PCR   judge   found   defendant's      former      trial   counsel

credible, while finding defendant's testimony, by contrast, was

"not credible or reliable."            Whereas counsel's testimony was

"candid, consistent, exact, and unwavering, both on direct and

cross[-]examination," defendant "was eager and more than willing

to tell his story on direct examination[, but h]e was not as

cooperative on cross[-]examination."           Specifically, the PCR judge

"sensed a specific hesitation and/or reluctance to answer at times

during   the     cross   [-]examination.       Many    of   his    answers    were

argumentative and often times not responsive or repetitive, or

creat[ed] serious doubts as to his credibility and reliability."

     Conversely, not only did defense counsel "demonstrate[ ] a

good recollection of the facts and circumstances surrounding her

representation of [defendant, but also she] did not attempt to

avoid    any    questions,   that    all   questions   both    on    direct    and

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cross[-]examination were answered directly, fully, confidently and

without equivocation, in a non-argumentative or confrontational

matter."   Nor did the PCR judge sense "any attempt [by counsel]

to deceive or otherwise misrepresent the facts in any way."

     In applying the pertinent law, the PCR judge rejected each

of defendant's arguments.    Initially, the judge found defendant

"failed to provide any credible evidence to establish '[a] factual

predicate that would make it reasonably likely that [the lead

detective's personnel] file [would] bear . . . fruit[,] and that

the quest for its content[s was] not merely a desperate grasping

at [ ] straw[s].'"   (quoting State v. Harris, 
316 N.J. Super. 384,

398 (App. Div. 1998)).   In addition, the judge noted there was no

evidence the file would have revealed "bad acts" that would be

relevant to his case.

     Further, defendant did not produce any credible evidence that

trial counsel failed to investigate or interview witnesses.        On

the contrary, the judge credited counsel's testimony that she met

with the witnesses several times.

     The PCR judge also found defendant's argument that trial

counsel failed to argue effectively during the suppression motion

was procedurally barred pursuant to Rule 3:22-5, because a panel

of this court has already upheld the search of defendant's person

on direct appeal.    Sanchez, slip op. 12-14.

                                 8                          A-1059-16T4
     While    we   disagree   that   defendant's   claims   were    barred

procedurally,2 the trial judge astutely rejected defendant's claim

on the merits, giving due deference to trial counsel's trial

strategy.     To support his decision, the trial court cited State

v. Biegenwald, 
126 N.J. 1, 56 (1991) (recognizing "[i]n matters

of trial strategy, we accord great deference to the decisions of

counsel.").

     The PCR judge found further there was "more than sufficient

evidence" to sustain the indictment.      Citing our decision in State

v. Fleischman, 
383 N.J. Super. 396, 398 (App. Div. 2006), the

judge found an indictment "'is presumed valid' and all inferences

of fact[] upon which the indictment is based must be viewed in

favor of the state." See also, State v. Nicholson, 
451 N.J. Super.
 534, 541 (App. Div. 2017) (quoting State v. Feliciano, 
224 N.J.
 351, 380 (2016)).     Therefore, he concluded the motion to dismiss




2
   In his PCR petition, defendant argued trial counsel was
ineffective for failing to argue during the suppression hearing
the "pat down" search was illegal because the lead detective did
not immediately know whether the "unusual bulge" was a weapon. On
direct appeal, we only considered and upheld the legality of the
search based on the evidence presented.      We did not consider
whether counsel was effective in her questioning during the
suppression hearing. Thus, defendant's ineffective assistance of
counsel claim is not procedurally barred pursuant to Rule 3:22-5;
see also State v. McQuaid, 
147 N.J. 464, 484 (1997) (recognizing
"claims that differ from those asserted below will be heard on
PCR.").

                                     9                             A-1059-16T4
the indictment would have been fruitless and defendant suffered

no prejudice.

     Regarding defendant's argument that counsel failed to file a

motion for severance, the PCR judge found "joinder of defendant

was clearly proper."     Citing Rule 3:7-7, he recognized, "all

defendants   are   alleged   to   have   participated   in   the   same

transaction[,] . . . the evidence against all defendants is largely

the same[,] . . . [and] the defenses and/or contentions of each

defendant[] does not prejudice one petitioner against the other."

See also, State v. Robinson, 
253 N.J. Super. 346, 364 (App. Div.

1992); State v. Brown, 
170 N.J. 138, 160 (2001).

     Finally, the PCR judge found any inconsistency between the

lead detective's trial testimony and grand jury testimony to be

"d[e] minim[i]s" and "inconsequential."       Referencing the second

prong of Strickland, the judge found this was not "sufficient to

produce a different result at trial."       Strickland, 
445 U.S.  at
 694; Fritz, 
105 N.J. at 52-53.

     In sum, the trial judge found defendant's arguments were

"self-serving, speculative, and conclusory."      As such, defendant

"failed to provide any credible evidence as to any of the claims

alleged in support of [his] application for ineffective assistance

of counsel, to show and/or prove that [c]ounsel's performance



                                  10                           A-1059-16T4
'fell below an objective standard of reasonableness.'   Strickland,


446 U.S. at 687-88; [see] also, Fritz, 
105 N.J. at 67."

     We see no reason to disturb the PCR judge's factual and

credibility findings.   His sound assessment of the weight and

credibility of the evidence commands our deference.     See State v.

Robinson, 
200 N.J. 1, 15 (2009).

     Affirmed.




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