STATE OF NEW JERSEY v. IBN MUHAMMAD,

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1395-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

IBN MUHAMMAD, a/k/a RAFI
MUHAMAD, ABDUR-RAFI
MUHAMMAD, RAFI MUHAMMAD,
ALI MUHAMMAD, and ABDUR
MUHAMMAD,

     Defendant-Appellant.
_______________________________

                    Submitted November 20, 2019 – Decided December 3, 2019

                    Before Judges Haas and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 08-09-2743.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Andrew Robert Burroughs, Designated
                    Counsel, on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Lucille M.
             Rosano, Special Deputy Attorney General/Acting
             Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

       Defendant Ibn Muhammad 1 appeals from the September 20, 2018 order

denying his petition for post-conviction relief (PCR). We affirm, substantially

for the reasons set forth in Judge Siobhan A. Teare's cogent written opinion.

       We previously recited the underlying facts in this matter in opinions

stemming from defendant's direct appeal and his appeal of the denial of his

initial PCR petition. State v. Muhammad, No. A-5475-10 (App. Div. June 28,

2013), certif. denied,  218 N.J. 275 (2014); State v. Muhammad, No. A-2429-15

(App. Div. Mar. 9, 2017). We need only summarize the essential facts here.

       Defendant was charged with numerous offenses arising out of three

different incidents: a September 6, 2007 shooting involving the exchange of

gunfire with an individual named Jeffrey Christopher; the murder of Jeffrey

Christopher on January 12, 2008; and an attempted witness tampering on

February 4, 2008.

       At defendant's jury trial in 2010, four witnesses testified and identified

defendant as the culprit in all three incidents. The jury acquitted defendant of



1
    Defendant also is referenced in the record as Ibn Muhammed.
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all charges arising from the September 6, 2007 incident, but convicted him of

the offenses flowing from the other two incidents. The trial judge sentenced

defendant on February 1, 2011 to life in prison with thirty years of parole

ineligibility on the murder charge, a consecutive ten-year term on the witness

tampering charge, and to concurrent five- and ten-year terms on weapons

offenses.

      As already mentioned, defendant filed a direct appeal, and we affirmed

his convictions in 2013. We remanded the matter to the trial court only to correct

the judgment of conviction to reflect that defendant was required to serve [sixty -

three] years and nine months without parole under the No Early Release Act,

 N.J.S.A. 2C:43-7.2. Muhammad, No. A-5475-10 (slip op. at 20-21).

      Defendant then filed a PCR petition on August 20, 2014. His request for

relief was denied without an evidentiary hearing. We reversed so the trial court

could conduct an evidentiary hearing to address defendant's alibi claim, as well

as his assertion that trial counsel failed to properly advise him regarding his

right to testify. Muhammad, No. A-2429-15 (slip op. at 13).

      Judge Teare conducted an evidentiary hearing on August 13, 2018.

Defendant provided testimony at this hearing, as did his cousin, his brother and




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the mother of his child. Defendant's trial attorney, Sebastian Bio, Esq., also

testified at this hearing as the State's only witness.

      Bio confirmed he had spoken with defendant many times before trial about

the State's plea offers, his trial strategy and defendant's right to testify. Bio

noted he had a discussion with defendant that "bordered on begging" his client

to accept the State's plea offer. Bio also affirmed no one, including defendant,

approached him about an alibi claim or about persons willing to testify on

defendant's behalf.

      Bio was questioned about defendant having an alibi defense for the murder

charge based on his playing basketball with his brother and cousin. Bio insisted

he had not heard of this defense until the evidentiary hearing. Bio added "I

would have jumped all over that. I would have been more than happy to hear

from . . . alibi witnesses." Bio further affirmed there were witnesses inculpating

defendant on all three incidents, so Bio approached the case as an

"identification" case.

      Bio also confirmed he had dissuaded defendant from testifying at trial,

due to defendant's prior convictions. When Bio was asked if a strategic decision

had been made regarding defendant remaining silent at trial, Bio responded,

"[a]bsolutely."


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      Judge Teare determined Bio was "calm and answered all questions

directly on both direct and cross-examination. He kept good eye contact with

the attorneys and . . . his testimony was credible." We note that Bio's testimony

also is supported by the trial record. Indeed, the record demonstrates that on

December 8, 2010, defendant was questioned by the trial judge under oath

regarding whether he would testify. The trial judge inquired if defendant's

attorney had thoroughly discussed his options about testifying and defendant

answered, "I don't wish to testify." The trial court pressed him further and

repeated, "have you discussed that thoroughly with [your attorney]?" Defendant

replied, "[y]es."

      Judge Teare also considered the testimony of Karess Daniels, the mother

of defendant's child, at the evidentiary hearing. Daniels confirmed that on the

day of the murder, defendant left her home around 9:15 a.m. to play basketball

with his brother. She claimed defendant did not return until about 5:20 p.m. and

she did not know his whereabouts once he left her home. She also admitted she

never reached out to Bio to inform him defendant had an alibi for the day of the

murder. Judge Teare found Daniels' testimony credible.

      During the evidentiary hearing, defendant's brother and former co -

defendant in this matter, Salahudin Muhammad, also testified he was with


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defendant on the day of Christopher's murder. Salahudin Muhammad claimed

he and his cousin picked up defendant at Daniels' house at about 9:15-9:30 a.m.

and went to play basketball at the YMCA. This witness also stated he tried to

talk to Bio about an alibi defense for his brother but the alibi conversation was

"nixed off" due to plea discussions between defendant and Bio. Judge Teare

found Salahudin Muhammad's testimony "appeared to have been staged."

      Damian Scott, defendant's cousin, corroborated Salahudin Muhammad's

testimony. Scott advised he picked defendant up at Daniels' home on the day of

the murder and headed to the YMCA to play basketball. Additionally, Scott

testified that after he and defendant played basketball, they went shopping and

picked up something to eat. Scott claimed he then returned defendant to Daniels'

home. Further, Scott testified he tried to talk to Bio one time during the trial

about defendant's alibi but was ignored. Judge Teare found "little credibility"

in Scott's testimony.

      Defendant was the final witness to testify at the evidentiary hearing. He,

too, affirmed that on the day of the murder, he played basketball with his brother

and Scott at the YMCA. Additionally, defendant testified that prior to trial, he

told Bio he had three witnesses who could testify on his behalf, and Bio

responded he would "look into it." Moreover, defendant stated at the evidentiary


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hearing that he informed his attorney he wished to testify at trial, but Bio told

him it would not be a good idea because he would not be credible due to his

history of criminal convictions.

      Defendant maintained he saw Bio only twice while Bio represented him

and that he and Bio spoke only one time about witnesses who could testify for

defendant. At the conclusion of defendant's testimony, Judge Teare stated "[i]t

appeared to the court that the defendant was not credible and he was suffering

from regret of his convictions. It appeared that he had studied his case and the

law surrounding PCRs and tried to formulate his answers to further his

ineffective assistance of counsel argument."

      Following the evidentiary hearing, Judge Teare denied defendant's PCR

petition. On appeal, defendant raises the following arguments:

            THE PCR COURT ERRED WHEN IT FOUND
            DEFENDANT HAD FAILED TO ESTABLISH A
            CASE OF INEFFECTIVE ASSISTANCE OF
            COUNSEL.

            (1) As [d]efendant established that he had informed his
            attorneys about an alibi defense, the PCR court erred
            when it denied his [PCR].

            (2) As [d]efendant had demonstrated that his attorney
            failed to explain the possible advantages of testifying at
            trial and his testimony would have aided his defense,
            the PCR court erred when it denied his [PCR].


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      To prevail on a claim of ineffective assistance of counsel, a defendant

must satisfy the two-pronged Strickland test. Strickland v. Washington,  466 U.S. 668 (1984). A defendant asserting such a claim must establish acts or

omissions of counsel showing unreasonable professional judgment, and also

show that counsel's errors had a prejudicial effect on the trial. State v. Fritz,

 105 N.J. 42, 58 (1987).

      Here, Judge Teare found Bio demonstrated "an ability at trial that more

than satisfies the minimum reasonable standard for effective assistance of

counsel." Further, the judge found defendant had not satisfied the second prong

of Strickland in that he had not demonstrated how his attorney's actions

prejudiced the outcome of defendant's trial.

      Credibility is for the factfinder to determine, and therefore we give great

deference to the judge's findings. Ferdinand v. Agric. Ins. Co. of Watertown,

N.Y.,  22 N.J. 482, 492 (1956). After a thorough review of the transcript from

the evidentiary hearing, we are satisfied Judge Teare's credibility findings for

each witness are amply supported by the record. Moreover, we perceive no basis

to disturb her determination that defendant failed to establish ineffectiveness of

counsel under the Strickland test and failed to demonstrate he was forced by trial

counsel to not testify.


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      Defendant's remaining arguments lack sufficient merit to warrant

discussion in this opinion. Rule 2:11-3(e)(2).

      Affirmed.




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