STATE OF NEW JERSEY v. NICHOLAS A. BROWN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4317-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NICHOLAS A. BROWN, a/k/a
NICHOLAS ANTHONY
BROWN, ANTHONY BROWN,
STRESS, and KNIT,
Defendant-Appellant.
________________________
Submitted September 23, 2019 – Decided October 29, 2019
Before Judges Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 12-01-
0044.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kisha M.S. Hebbon, Designated Counsel, on
the brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Joie D. Piderit,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Nicholas A. Brown appeals from a September 11, 2017 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. Before us, he presents the following arguments:
POINT I:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO
DETERMINE THE MERITS OF HIS CONTENTION
THAT HE WAS DENIED THE RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL DUE TO
TRIAL COUNSEL'S FAILURE TO RAISE THE
AFFIRMATIVE DEFENSE OF INSANITY
A. The Prevailing Legal Principles Regarding
Claims Of Ineffective Assistance Of
Counsel, Evidentiary Hearings And
Petitions For Post Conviction Relief.
B. Trial Counsel Rendered Ineffective Legal
Representation By Virtue Of Her Failure
To Conduct A Thorough Pretrial
Investigation Into The Potential
Affirmative Defense Of Insanity And Her
Failure To Call An Expert To Testify
About Defendant's Mental Illness. (Da 35-
60)
A-4317-17T4
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C. Defendant Is Entitled To A Remand To
The Trial Court To Afford Him An
Evidentiary Hearing To Determine The
Merits Of His Contention That He Was
Denied The Effective Assistance Of Trial
Counsel.
Having reviewed the record in light of the applicable legal standards, we are
unpersuaded by defendant's arguments and affirm substantially for the reasons
set forth by the PCR judge in his written decision.
The procedural history and trial evidence are detailed in our unpublished
decision opinion affirming defendant's conviction and sentence on direct appeal,
State v. Brown, No. A-3356-12 (App. Div. Jan. 8, 2016), certif. denied, 224 N.J.
529 (2016), and in the PCR judge's written decision opinion dated October 31,
2014. A brief summary will suffice here.
On September 22, 2011, at approximately 11:30 p.m., Woodbridge Police
Officers Thomas Ganci and Joseph Dutcher were patrolling in a marked vehicle
when they saw defendant, sitting alone in a parked car in the parking lot of an
apartment complex. As they approached defendant's car on foot, another vehicle
drove by and someone inside yelled something indecipherable. Defendant then
drove past the officers, nearly hitting Ganci. Dutcher then banged on the
window of defendant's car to alert him to stop, but defendant sped away. The
officers' ensuing car chase concluded when defendant's car came to a stop after
A-4317-17T4
3
colliding into a retaining wall. Defendant tried to escape on foot, but was
apprehended by Dutcher.
A subsequent search incident to defendant's arrest resulted in the seizure
of multiple controlled dangerous substances (CDS) and $787. At trial, the State
presented the testimony of an expert in the field of CDS to establish that
defendant had the intent to sell the CDS and that the money was from the sale
of CDS.
A jury found defendant guilty of multiple offenses: third-degree
possession of heroin; third-degree possession of heroin with intent to distribute;
second-degree possession of heroin with intent to distribute within 500 feet of a
public park; third-degree possession of cocaine; third-degree possession of
cocaine with intent to distribute; second-degree possession of cocaine with
intent to distribute within 500 feet of a public park; second-degree eluding; and
fourth-degree resisting arrest. Defendant was sentenced to an aggregate
extended prison term of fifteen years with a five-year period of parole
ineligibility. We affirmed his conviction and sentence on direct appeal, State v.
Brown, No. A-3356-12 (App. Div. Jan. 8, 2016), and his petition for certification
was denied. 224 N.J. 529 (2016).
A-4317-17T4
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Shortly thereafter, defendant filed a PCR petition alleging his trial counsel
was ineffective because she failed to: (1) consult with, hire, or call to testify an
expert to substantiate his schizoaffective disorder in order to present an insanity
defense; (2) consult with, hire, or call to testify an expert in the field of forensic
video analysis to evaluate the operation of the officers' motor vehicle recording
device; (3) challenge original unsworn complaints as to probable cause and lack
of a neutral judicial officer's signature; (4) challenge judicial and prosecutorial
misconduct in hiding evidence; and (5) investigate defense witnesses who
observed defendant prior to an ensuing police chase. He also contended
appellate counsel failed to argue judicial or prosecutorial misconduct and made
erroneous arguments regarding the illegality of his extended term sentences.
The PCR judge, who was also the trial judge, issued an order denying PCR
without an evidentiary hearing. In his appeal to us, defendant maintains the
judge erred in not recognizing his schizoaffective diagnosis that was rendered
prior to his arrest, and would have supported an insanity defense. He maintains
that if the defense had been presented at trial, the jury would have found him
not guilty by reason of insanity. Thus, he asserts a remand is necessary so he
can present the merits of the contention at an evidentiary hearing. We see no
cause to disagree with the PCR judge's order.
A-4317-17T4
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Applying the well-recognized two-prong test to establish ineffectiveness
of counsel, Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v.
Fritz, 105 N.J. 42, 58 (1987), the judge found there was no prima facie claim
that: (1) trial counsel's performance was deficient and (2) that the deficient
performance prejudiced the defense. As to the first prong, the judge stated in
his written decision, "the record indicates that defense counsel had defendant
evaluated and the conclusions of that evaluation stated that defendant lacked an
affirmative defense for mental incapacity. Moreover, [d]efendant received
inpatient drug treatment and there was no diagnosis of [s]chizoaffective
disorder." And as to the second prong, the judge noted, "it is highly unlikely
even if [defendant] could show that he suffered a mental incapacity, the outcome
of the trial would have been different." Since no prima facie claim of ineffective
assistance of counsel was established, the judge correctly applied State v.
Preciose, 129 N.J. 451, 463 (1992), to determine defendant was not entitled to
an evidentiary hearing.
Accordingly, we affirm substantially for the reasons set forth by the PCR
judge in his written decision. We only add that defendant's contention he could
have presented a viable insanity defense is a bald assertion not "supported by
affidavits or certifications based upon the personal knowledge of the affiant or
A-4317-17T4
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the person making the certification." State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999) (citing R. 1:6-6); see also State v. Jones, 219 N.J. 298,
312 (2014) (holding affidavits or certifications supporting PCR petitions must
identify the facts sought to be established with particularity). Defendant failed
to submit an affidavit or certification by someone qualified to assert that
defendant had a mental disorder at the time of the crimes that would have
justified an affirmative defense of not guilty by reason of insanity.
Affirmed.
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