STATE OF NEW JERSEY v. JUSTIN HAZEL

NOT FOR PUBLICATION WITHOUT THE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-3661-18T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JUSTIN HAZEL,

     Defendant-Appellant.
__________________________

                    Submitted October 19, 2020 – Decided November 4, 2020

                    Before Judges Mayer and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 11-07-1306.

                    Hegge & Confusione, LLC, attorneys for appellant
                    (Michael J. Confusione, of counsel and on the brief).

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

                    Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Justin Hazel appeals from a March 19, 2019 order denying his

petition for post-conviction relief (PCR) after an evidentiary hearing.       We

affirm.

      The facts leading to defendant's conviction for murder and weapons

offenses are set forth in State v. Hazel, No. A-5404-12 (App. Div. September

23, 2015). In his direct appeal, defendant challenged the sufficiency of the

evidence upon which he was convicted and the trial judge's rejection of his

request to charge lesser-included offenses. We affirmed defendant's conviction

but remanded for resentencing. Defendant filed a petition for certification,

which was denied by our Supreme Court on January 21, 2016. State v. Hazel,

 224 N.J. 244 (2016).

      On March 13, 2018, defendant filed a PCR application. An evidentiary

hearing was held on January 25, 2019, limited to whether trial counsel's

investigation and decision not to object at the time of trial to the admission of

certain evidence, specifically kitchen knives, constituted ineffective assistance

of counsel. In a March 19, 2019 order and accompanying twelve-page written

decision, Judge Siobhan A. Teare denied defendant's PCR petition.

      On appeal, defendant, through his counsel, raises the following argument:




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      THE TRIAL COURT ERRED IN DENYING
      DEFENDANT'S    PETITION FOR POST-
      CONVICTION RELIEF.

Defendant asserts the following arguments in his pro se supplement brief:

      POINT ONE

      THE DEFENDANT WAS DENIED EFFECTIVE
      ASSISTANCE OF PCR COUNSEL BY HIS FAILURE
      TO SUPPORT DEFENDANT'S CLAIM WITH AN
      EXPERT OPINION AS REQUESTED, THEREFORE
      THE ORDER DENYING PCR SHOULD BE
      REVERSED AND REMANDED TO PROVIDE
      DEFENDANT AN OPPORTUNITY TO FULLY
      EXHAUST HIS CLAIM. (Partially raised below)

      POINT TWO

      THE    DEFENDANT   WAS    DEPRIVED   OF
      EFFECTIVE ASSISTANCE OF PCR COUNSEL BY
      HIS FAILURE TO RAISE THE CLAIM THAT
      DEFENDANT WAS SUBJECTED TO INEFFECTIVE
      ASSISTANCE OF TRIAL COUNSEL FOR NOT
      EXERCISING HIS CONTROL OVER THE DEFENSE
      TO BE UTILIZED AND THE DECISION
      CONCERNING THE TRIAL COURT INSTRUCTING
      THE JURY ON THE LESSER-INCLUDED
      OFFENSES OF AGGRAVATED MANSLAUGHTER
      AND       RECKLESS      MANSLAUGHTER,
      ESPECIALLY,   OVER   THE   DEFENDANT'S
      OBJECTION, THEREFORE THE ORDER DENYING
      THE PCR SHOULD BE REVERSED. (Not raised
      below)




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      During the PCR evidentiary hearing, Judge Teare found defendant's trial

counsel testified credibly and was "calm and composed" throughout his

testimony. On the other hand, she found defendant "seemed a bit confused

during cross-examination, often choosing not to answer questions he disagreed

with and spoke adamantly in his responses." After seeing and hearing the

witnesses, the judge did not find defendant's "testimony to be entirely credible."

      The judge rejected defendant's argument that his trial counsel's failure to

communicate with him regarding his case and to share discovery rendered

defendant unable to assist in developing a defense strategy. At the evidentiary

hearing, the State provided a statement, signed by defendant, confirming

defendant met with his trial attorney several times prior to trial and that counsel

answered defendant's questions. The signed statement also reflected counsel's

advice that defendant accept the plea offer but defendant chose to proceed to

trial against the advice of his attorney.

      In addition, defendant's trial counsel testified that he met with defendant

on seven occasions and each meeting lasted between "an hour and a half to two

and a half hours" with the exception of the last two meetings which lasted twenty

minutes. Counsel explained he was the second or third attorney to represent

defendant. By the time counsel substituted into the case, the matter had been


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                                            4
scheduled for trial and, as newly substituted trial counsel, he presumed the prior

attorney(s) reviewed discovery with defendant. Defendant's trial attorney told

Judge Teare that defendant was "fixated" on his own version of the events and

the evidence and became "hostile" to the point of ignoring legal advice. Even if

counsel spent less time meeting with defendant, Judge Teare aptly concluded

the amount of time spent meeting with a client is not indicative of the total

amount of time spent preparing for trial.

      On the failure to object to the admission of testimony and evidence

concerning the knives, defendant argues there was nothing linking the knives to

the stabbing.    At the PCR evidentiary hearing, defendant's trial counsel

explained he did not object to the admission of the knives because the State's

case was "very weak." Defendant's trial counsel argued during summation that

the knives had no biological link to the case and were introduced by the State to

confuse the jury and deflect the real issues in the case concerning defendant's

guilt or innocence.

      Judge Teare concluded defense trial counsel made a strategic decision

regarding the knives because counsel intended to argue to the jury that the State

was overzealous in prosecuting defendant without evidence linking the knives

to the crime. She also rejected defendant's contention that trial counsel's failure


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                                        5
to re-enact the fight scene resulted in ineffective assistance of counsel because

the argument "call[ed] for extreme speculation . . . ."

      After considering the testimony during the evidentiary hearing and

rendering credibility determinations, Judge Teare concluded:

            [T]rial counsel's performance was not deficient and that
            there [was] no reasonable probability that, but for trial
            counsel's strategic decisions, the result of the
            proceeding would have been different. It is the
            determination of this [c]court that trial counsel engaged
            in reasonable representation that in no way rose to a
            level of ineffective assistance of counsel.

      We concluded defendant's arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons set forth in Judge Siobhan A. Teare's well-reasoned and thorough

written decision.

      Affirmed.




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