STATE OF NEW JERSEY v. ZAHIER K. CROSELL

NOT FOR PUBLICATION WITHOUT THE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-2556-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ZAHIER K. CROSELL,

     Defendant-Appellant.
___________________________

              Submitted January 25, 2018 – Decided February 15, 2018

              Before Judges Simonelli and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 14-05-0387.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Amira R. Scurato, Designated
              Counsel, on the brief).

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Kim L.
              Barfield, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
      Defendant Zahier Crosell appeals from the December 1, 2016

Law Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.      We affirm.

      We derive the following facts from the evidence presented at

the motion to suppress a handgun found during a warrantless search

of defendant's car.     According to New Jersey State Trooper Andrew

Menzoni, at approximately 10:00 p.m. on January 17, 2014, he and

State Trooper Staub saw a car stopped in the lane of travel on

Highway 49 in Bridgeton, with the driver, later identified as

defendant, speaking to a pedestrian on the side of the roadway.

Menzoni and Staub activated the overhead lights of their patrol

cars as they followed defendant's car into a nearby parking lot,

and stopped the car after defendant made an evasive maneuver.

Staub approached the driver's side of defendant's car and spoke

to defendant, who had no identification.       Menzoni called in the

stop to dispatch and then exited his patrol car and went to the

passenger   side   of   defendant's   car.   Menzoni   illuminated   his

flashlight into the passenger side and saw the grip of a gun

sticking out from under the front passenger seat.         Menzoni went

to the driver's side, asked defendant to exit his car, placed him

under arrest, and administered his Miranda1 rights.       Menzoni then


1
    Miranda v. Arizona, 
384 U.S. 436 (1966).


                                      2                         A-2556-16T3
returned to the passenger side, opened the door, bent down, reached

into the car, immediately retrieved the handgun, and secured it

in the trunk of his patrol car. Neither Trooper looked any further

into defendant's car.   The stop was recorded on the motor vehicle

recording (MVR) device in Menzoni's patrol car.     The handgun was

tested and found to be operable and capable of being discharged.

      A grand jury indicted defendant for second-degree unlawful

possession of a weapon, 
N.J.S.A. 2C:39-5(b) (count one), and third-

degree certain persons not to have weapons, 
N.J.S.A. 2C:39-7(b)(3)

(count two).2     In denying defendant's motion to suppress the

handgun, Judge Robert G. Malestein viewed the MVR recording and

found Menzoni's testimony credible.    The judge determined the stop

was lawful based on Menzoni's reasonable and articulable belief

that defendant committed a motor vehicle violation, and the plain

view exception applied to the warrantless search of defendant's

car and seizure of the handgun.       Defendant then pled guilty to

count one and two counts of violation of probation, and was

sentenced to a five-year term of imprisonment with a forty-two

month period of parole ineligibility.

      Defendant did not appeal his conviction or sentence. Instead,

he filed a pro se PCR petition, arguing that defense counsel


2
    Defendant was also charged with several motor vehicle offenses.


                                 3                           A-2556-16T3
rendered ineffective assistance by failing to investigate how and

where the handgun was found and pursue a defense under the Gun

Amnesty Law, L. 2013, c. 117.   With no supporting certification,

defendant asserted in his pro se PCR brief, as he does in his

merits brief on appeal, that he told defense counsel "he was on

his way to turn the . . . weapon in, in accordance with [the Gun

Amnesty Law,]" but counsel failed to investigate the law and

advised him not to mention it because "the Judge would not buy

it."   Assigned PCR counsel submitted a brief, adding that defense

counsel was ineffective for failing to file a motion to suppress,

and if counsel did file a motion, the court improperly denied it

because the elements of the plain view doctrine were not met.

       In a written opinion, Judge Malestein found that defense

counsel filed a motion to suppress and vigorously cross-examined

Menzoni, the motion was properly denied, and defendant did not

allege any deficiencies in defense counsel's performance on the

motion.   The judge also found defendant provided no proof that an

investigation would have revealed anything different than the

evidence presented at the motion to suppress, and that based on

the MVR recording, there was no need for a further investigation

as to how and where the gun was found.   The judge also determined

that defendant failed to comply with the notice requirements of


N.J.S.A. 2C:39-12, as required by the Gun Amnesty Law.    Lastly,

                                 4                         A-2556-16T3
the judge found there was no competent evidence that defendant was

intending to voluntarily surrender his handgun, as the gun "was

not disabled or locked away, but just out in the open under the

seat ready for use and not stored for transport."

     On appeal, defendant reiterates the arguments made to Judge

Malestein.   Defendant adds that PCR counsel rendered ineffective

assistance by arguing, incorrectly, that defense counsel did not

file a motion to suppress.

     We review a judge's decision to deny a PCR petition without

an evidentiary hearing for abuse of discretion. State v. Preciose,


129 N.J. 451, 462 (1992).      Where "no evidentiary hearing was

conducted, we may review the factual inferences the court has

drawn from the documentary record de novo."    State v. Blake, 
444 N.J. Super. 285, 294 (App. Div.), certif. denied, 
226 N.J. 213

(2016).   Applying these standards, we discern no reason to disturb

Judge Malestein's decision.

     To establish a prima facie claim of ineffective assistance

of counsel, the

           defendant must satisfy two prongs. First, he
           must demonstrate that counsel made errors "so
           serious that counsel was not functioning as
           the 'counsel' guaranteed the defendant by the
           Sixth    Amendment."         An     attorney's
           representation is deficient when it "[falls]
           below     an     objective     standard     of
           reasonableness."


                                 5                          A-2556-16T3
               Second, a defendant "must show that the
          deficient    performance    prejudiced    the
          defense." A defendant will be prejudiced when
          counsel's errors are sufficiently serious to
          deny him a "fair trial."        The prejudice
          standard is met if there is "a reasonable
          probability    that,   but    for   counsel's
          unprofessional errors, the result of the
          proceeding would have been different."      A
          "reasonable probability" simply means a
          "probability    sufficient     to   undermine
          confidence in the outcome" of the proceeding.

          [State v. O'Neil, 
219 N.J. 598, 611 (2014)
          (alteration in original) (quoting Strickland
          v. Washington, 
466 U.S. 668, 687-88, 694
          (1984)).]

     "[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that he was denied the

effective assistance of counsel.      He must allege facts sufficient

to demonstrate counsel's alleged substandard performance."      State

v. Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999).            The

defendant must establish, by a preponderance of the credible

evidence, that he is entitled to the requested relief.       State v.

Nash, 
212 N.J. 518, 541 (2013).       "[W]hen a petitioner claims his

trial attorney inadequately investigated his case, he 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."        State v.

Porter, 
216 N.J. at 343, 353 (2013) (alteration in original)

(quoting Cummings, 
321 N.J. Super. at 170).

                                  6                           A-2556-16T3
       With respect to a guilty plea, our Supreme Court has explained

that

            [T]o set aside a guilty plea based on
            ineffective assistance of counsel, a defendant
            must show that (i) counsel's assistance was
            not "within the range of competence demanded
            of attorneys in criminal cases"; and (ii)
            "that there is a reasonable probability that,
            but for counsel's errors, [the defendant]
            would not have pled guilty and would have
            insisted on going to trial."

            [State v. Nuñez-Valdéz, 
200 N.J. 129, 139
            (2009)   (second  alteration   in   original)
            (quoting State v. DiFrisco, 
137 N.J. 434, 457
            (1994).]

The defendant must also show "a decision to reject the plea bargain

would have been rational under the circumstances."                  Padilla v.

Kentucky, 
559 U.S. 356, 372 (2010); see also State v. Maldon, 
422 N.J. Super. 475, 486 (App. Div. 2011).           "Courts should not upset

a plea solely because of post hoc assertions from a defendant

about    how   he    would   have    pleaded    but    for    his   attorney's

deficiencies.       Judges   should   instead    look    to   contemporaneous

evidence to substantiate a defendant's expressed preferences."

Lee v. United States, 582 U.S. ___, 
137 S. Ct. 1958, 1967 (2017).

       Defendant did not establish a prima facie case of ineffective

assistance     of   PCR   counsel.    Despite    PCR    counsel's    erroneous

argument that defense counsel failed to file a motion to suppress,

defendant failed to show PCR counsel's error prejudiced him.


                                      7                                A-2556-16T3
Defendant does not argue that PCR counsel failed to raise arguments

he requested or otherwise performed deficiently in pursuing the

arguments raised.

      We have considered defendant's contentions with respect to

defense counsel in light of the record and applicable legal

principles and conclude they are without sufficient merit to

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

affirm substantially for the reasons Judge Malestein expressed in

his   written   opinion.   However,   we   make   the   following     brief

comments.

      The Gun Amnesty Law provides that

            [a]ny person who has in his possession a
            handgun in violation of [N.J.S.A. 2C:39-5(b)]
            or a rifle or shotgun in violation of
            [N.J.S.A. 2C:39-5(c)] on the effective date
            of this act may retain possession of that
            handgun, rifle, or shotgun for a period of not
            more than 180 days after the effective date
            of this act.    During that time period, the
            possessor of that handgun, rifle, or shotgun
            shall:

            (1) transfer that firearm to any person
            lawfully entitled to own or possess it; or

            (2)   voluntarily   surrender   that   firearm
            pursuant to the provisions of [
N.J.S.A. 2C:39-
            12].

            [L. 2013, c. 117, § 1.]




                                  8                                 A-2556-16T3
The amnesty provision became effective on August 8, 2013, and was

set to "expire on the 181st day after enactment[,]" or February

4, 2014.   L. 2013, c. 117, § 3.

     As our Supreme Court stated:

           [T]he amnesty law did not afford defendants
           blanket immunity for the entire amnesty
           period. . . .

                Instead, the law created a period of no
           more than six months during which people could
           dispose of weapons they illegally possessed
           without being prosecuted.       The provision
           affords a defense to those who attempted to
           comply with its terms.

           [State v. Harper, 
229 N.J. 228, 232 (2017).]

"A defendant charged under [
N.J.S.A. 2C:39-6(b) with unlawful]

possession [of a weapon] during the amnesty period may raise the

amnesty law as an affirmative defense."   Id. at 241.

           To do so, a defendant must show two things:
           (1) that he possessed a handgun in violation
           of [
N.J.S.A.] 2C:39-5(b) or (c) 'on the
           effective date of this act'. . . and (2) that
           he took steps to transfer the firearm or
           voluntarily surrender it during the 180-day
           period beginning on August 8, 2013, consistent
           with [
N.J.S.A.] 2C:39-12 -- that is, before
           authorities brought any charges or began to
           investigate his unlawful possession.

           [Ibid. (emphasis added) (citing L. 2013, c.
           117; N.J.S.A. 2C:39-12).]


N.J.S.A. 2C:39-12 provides that

           [n]o person shall be convicted of an offense
           under  this   chapter  for   possessing  any

                                   9                        A-2556-16T3
          firearms,   weapons,    destructive   devices,
          silencers or explosives, if after giving
          written notice of his intention to do so,
          including the proposed date and time of
          surrender, he voluntarily surrendered the
          weapon, device, instrument or substance in
          question to the superintendent or to the chief
          of police in the municipality in which he
          resides, provided that the required notice is
          received by the superintendent or chief of
          police before any charges have been made or
          complaints filed against such person for the
          unlawful possession of the weapon, device,
          instrument or substance in question and before
          any investigation has been commenced by any
          law enforcement agency concerning the unlawful
          possession.

          [(Emphasis added).]

     Defendant did not comply with 
N.J.S.A. 2C:39-12.      He gave no

written notice to law enforcement of his intention to voluntarily

surrender his handgun and did not voluntarily surrender it before

he was arrested and charged under 
N.J.S.A. 2C:39-5(b) with unlawful

possession of a weapon.   Accordingly, because defendant was not

entitled to the protection of the Gun Amnesty Law, defense counsel

committed no error in failing to raise the defense.

     Affirmed.




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