STATE OF NEW JERSEY v. YUSEF STEELE

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0353-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

YUSEF STEELE, a/k/a
YUSIF STEELE,

     Defendant-Appellant.
________________________

                   Submitted December 14, 2020 – Decided December 31, 2020

                   Before Judges Sabatino and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 08-10-
                   1809.

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

                   Yolanda Ciccone, Middlesex County Prosecutor,
                   attorney for respondent (David M. Liston, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      In this case, calendared back-to-back with A-0352-18, defendant Yusef

Steele appeals the trial court's denial of his petition for post-conviction relief

("PCR") concerning Middlesex County Indictment No. 08-10-1809. We affirm.

      Briefly stated, defendant was seen by New Brunswick police on the early

morning of August 15, 2008 interacting with a group of women in an area known

for drug trafficking. An officer saw defendant remove from his sock what

appeared to be heroin, and then exchange it for cash with a woman named Chere

Walker.

      Officers arrested Walker at the scene, searched her, and found the heroin

in her possession. Other officers chased defendant on foot, after locating him

within minutes of the transaction. During the chase, they observed defendant

toss several packets on the ground before he was apprehended. The packets

contained heroin and had labels that matched those on the drugs taken from

Walker.

      Defendant unsuccessfully moved to suppress the seized heroin and

statements he made while at the hospital after his arrest. At trial, the jury found

him guilty of several drug offenses, including second-degree distribution of

heroin within 500 feet of a public museum,  N.J.S.A. 2C:35-7.1. The trial judge

imposed for that offense a seven-year prison sentence with a three-year parole


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disqualifier, plus a consecutive five-year term with a three-year parole

disqualifier on another count charging the sale of drugs within 500 feet of public

housing. Other counts merged or resulted in concurrent sentences.

      In a 2013 unpublished opinion, this court affirmed defendant's conviction.

State v. Steele, No. A-2849-10 (App. Div. Sept. 27, 2013). Defendant then

moved to reduce or change his sentence, which, after a further appeal, was

revised and adjusted to merge the public housing count into the public museum

count.

      In his PCR petition, defendant claimed his trial counsel in this drug

prosecution was ineffective in failing to object to a jury charge that combined

the drugs found on the buyer and drugs found on the ground. Among other

things, defendant argued the charge was inappropriate because there was a short

period where officers could not see him during the chase.

      The PCR judge, who had not presided over the trial, found defendant's

petition procedurally barred under Rule 3:22-4, because he could have raised the

claimed defect in the jury charge on direct appeal. The judge also substantively

concluded that defendant's petition lacked merit. The judge discerned no reason

to conduct an evidentiary hearing.

      On appeal, defendant raises the following points for our consideration:



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POINT I

THE TRIAL COURT ERRED IN FINDING THAT
DEFENDANT'S    PETITION    FOR    POST-
CONVICTION RELIEF WAS PROCEDURALLY
BARRED BECAUSE THE ISSUES RAISED IN THE
PETITION COULD NOT HAVE BEEN RAISED ON
DIRECT APPEAL.

POINT II

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 TRIAL COUNSEL.

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 HIS
FAILURE TO OBJECT TO A JURY CHARGE
WHICH ERRONEOUSLY INCLUDED BOTH THE
DRUGS FOUND ON THE BUYER AND THE
DRUGS FOUND ON THE GROUND IN THE SAME
COUNT.

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


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                   4
            COUNSEL.

      Familiar principles guide our review. A person accused of crimes is

guaranteed under the Sixth Amendment the effective assistance of legal counsel

in his defense.   Strickland v. Washington,  466 U.S. 668, 687 (1984).            To

establish a deprivation of that constitutional right, a convicted defendant must

satisfy the two-part test set forth in Strickland by demonstrating that: (1)

counsel's performance was deficient, and (2) the deficient performance actually

prejudiced the accused's defense. Id. at 687; see also State v. Fritz,  105 N.J. 42,

58 (1987) (adopting the Strickland two-part test in New Jersey).

      In reviewing such claims, courts apply a strong presumption that defense

counsel "rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment." Strickland,  466 U.S.  at 690; see

also State v. Perry,  124 N.J. 128, 153 (1991).

      As a general matter, a defendant is not entitled to an evidentiary hearing

on a PCR application. Instead, it is within the court's discretion under Rule

3:22-10 to conduct such hearings. State v. Preciose,  129 N.J. 451, 462 (1992).

To obtain an evidentiary hearing based upon ineffective assistance claims, a

defendant must make a prima facie showing of his counsel's deficient

performance and actual prejudice, viewing the record in a light most favorable



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to that defendant. Preciose,  129 N.J. at 462-63; see also State v. Jones,  219 N.J.
 298, 311 (2014).

      Here, defendant posits that the jurors could have been confused about the

State's burden of proof because the jury instruction refers to two amounts of

drugs: (1) those found on Walker, and (2) those he discarded on the ground. We

agree with the trial court that no such realistic potential for confusion is manifest

here, and, moreover, defendant has failed to demonstrate actual prejudice to his

interests.

      As the PCR judge aptly found in his May 24, 2018 oral decision, the jury

charges' reference to both amounts of drugs did not prejudice defendant. The

wording suggests the State had the burden to prove that defendant had possessed

both quantities, not just one of them. The conjunctive use of the term "and"

within the charge linking the two quantities thereby increased the State's

evidentiary burden, since defendant otherwise would have been guilty if he had

been proven to possess either quantity. There was simply no actual prejudice to

defendant stemming from the wording. Hence, the second prong of Strickland

is not satisfied, regardless of whether or not the first prong of deficient

performance could be proven.

      Because defendant did not present a prima facie case for relief, the court

did not err in declining an evidentiary hearing. Preciose,  129 N.J. at 462-63.

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We need not address the procedural bar under Rule 3:22-4, except to note

defendant has not argued his counsel on direct appeal deficiently omitted a

necessary argument.

     Affirmed.




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