STATE OF NEW JERSEY v. ANDRE L. HENDERSON

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4370-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDRE L. HENDERSON,
a/k/a ANDRE LYDELL
HENDERSON,

     Defendant-Appellant.
_______________________

                   Submitted February 8, 2022 – Decided March 17, 2022

                   Before Judges Currier and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 12-06-0488.

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

                   William A. Daniel, Union County Prosecutor, attorney
                   for respondent (Albert Cernadas, Jr., Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from the order denying his petition for post-conviction

relief (PCR). We affirm.

      Defendant was charged in an indictment with first-degree attempted

murder,  N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, 2C:12-

1(b)(1); and third-degree aggravated assault,  N.J.S.A. 2C:12-1(b)(5) arising out

of his assault on a police officer. A jury convicted him on the aggravated assault

charges. We affirmed the convictions and sentence. State v. Henderson, No. A-

4019-14 (App. Div. May 17, 2018) (slip op. at 2).

      After defendant filed his petition for PCR in which he asserted his counsel

did not properly inform him about his right to testify at trial, 1 the court granted

an evidentiary hearing. Defendant was also given more time to file an additional

certification in support of his claim.

      During the hearing, defendant testified that he met with his trial attorney

several times and that "at the beginning, [counsel] said that he wanted me to

testify, that it was . . . important to the case." Defendant stated he "wanted to

testify because [he] felt that the jury wanted to hear [his] side of the story."



1
  Defendant raised numerous other arguments in his PCR petition and during
the evidentiary hearing regarding his claims of ineffective assistance of counsel.
On appeal, he only raises one argument: that trial counsel never told him it was
his decision whether to testify or not.
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      Defendant explained that at the end of the trial he had a conversation with

trial counsel who told him "that the case looked good, that [counsel did not] feel

that [defendant] needed to testify, that it's okay, that we'll be okay." Defendant

said counsel did not tell him it was his right to testify or that it was his decision

to make. He reiterated that when they discussed the issue at the end of the trial,

counsel said "you're good, you don't need to testify. It looked good."

      Defendant conceded during the PCR hearing that he had a good

relationship with his trial counsel. He thought his attorney was a good lawyer

and did well during the trial. He said trial counsel discussed strategy with him.

He also recalled the trial judge asking defendant whether he wanted to testify or

not and responding to the judge that he had decided on his own volition not to

testify. Defendant told the trial judge he did not have any questions of the court

or his trial counsel. He also signed a document attesting that he understood the

right to testify, and he had chosen to remain silent.

      Defendant told the PCR judge that trial counsel never told him he could

not testify, he just advised defendant he did not need to do so. And defendant

conceded that he agreed with trial counsel's advice. Defendant further explained

to the PCR court that while his testimony would have been the same as the




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witnesses who testified at trial, he "would have been the one presenting it

because it happened to [him]."

       In a comprehensive written opinion, the PCR judge rejected defendant's

argument. The court found defendant clearly waived his right to testify, finding

defendant told the trial judge he had discussed testifying with his attorney and

chose not to do so. Defendant did not specify to the PCR court as to what his

testimony might have been and what impact it might have had on the outcome

of the trial. He only said he felt the jury wanted to hear from him. However, he

conceded he had nothing new to say apart from what other witnesses had

testified to.

       The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment to the United States

Constitution was formulated in Strickland v. Washington,  466 U.S. 668 (1984),

and adopted by our Supreme Court in State v. Fritz,  105 N.J. 42 (l987). To

prevail on a claim of ineffective assistance of counsel, defendant must meet the

two-prong test of establishing that: (l) counsel's performance was deficient and

he or she made errors that were so egregious that counsel was not functioning

effectively as guaranteed by the Sixth Amendment; and (2) the defect in

performance prejudiced defendant's right to a fair trial such that there exists a


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"reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different."         Id. at 52, 60-61 (quoting

Strickland,  466 U.S.  at 687, 694).

      To establish a prima facie case of ineffective assistance of counsel, a

defendant must present legally competent evidence rather than "bald assertions."

See State v. Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999). Defendant

has not met that standard.

      It is clear the trial judge engaged in a lengthy conversation with defendant

during trial to ensure he understood his right to testify as well as the risks

associated with testifying and to confirm defendant wished to waive his right to

testify. Moreover, defendant stated he discussed testifying with his trial counsel

and understood it was his decision to make. He also stated that he and counsel

discussed strategy. A trial strategy that proves unsuccessful "does not mean that

counsel was ineffective." State v. DiFrisco,  174 N.J. 195, 220 (2002) (quoting

State v. Bey,  161 N.J. 233, 251 (1999)).

      Defendant also did not establish that his testimony could have affected the

outcome of the trial. He said he believed the jury wanted to hear from him, but

he also stated his testimony would not have differed from what the previous lay

and expert witnesses had said. Therefore, defendant failed to demonstrate that


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trial counsel's alleged error was "so serious as to undermine . . . confidence in

the . . . result reached." State v. Chew,  179 N.J. 186, 204 (2004).

      In summary, defendant did not present a prima facie case of ineffective

assistance. The PCR judge's determination was supported by sufficient credible

evidence and was reached after a hearing during which defendant testified. We

see no reason to disturb the trial court's order denying defendant's PCR petition.

      Affirmed.




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