Bilder, Muir, Jr., and Gibson. Muir, Jr., J.A.D., dissenting.
Following a jury trial 18-year-old defendant Quinn Bryant was convicted of two counts of simple assault, N.J.S.A. 2C:12-1a(3); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, N.J.S.A. 2C:39-5b. In the same trial, he was acquitted of more serious charges of aggravated assault. He was sentenced to a term of 10 years with a minimum of 4 years for the possession of the handgun for an unlawful purpose, a concurrent term of 5 years for unlawful possession of a handgun, and a consecutive term of six months for the simple assaults (which were merged) resulting in an aggregate sentence of 10 1/2 years with a minimum of 4 years.
Defendant appeals, contending that he was denied the effective assistance of counsel, that evidence of other crimes was improperly admitted in violation of Evid.R. 55, and that the sentence was manifestly excessive.
According to the State's evidence, defendant, then 17, displayed a handgun to two individuals with whom he was having words. A police vehicle*fn1 appeared and defendant fled. In the following chase, defendant pointed the handgun at the police
officers and he himself was shot in the knee. An unloaded .22 caliber handgun was recovered at the scene.
Defendant was initially charged as a juvenile but on motion of the State, after a hearing, Family Court jurisdiction was waived, see R. 5:22-2, and defendant was tried as an adult. It is with respect to the waiver hearing that defendant contends his attorney's performance was so deficient as to have denied him a fair trial. We agree.
The right to counsel is the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). Counsel may be ineffective simply by failing to render adequate legal assistance. Id. at 686, 104 S. Ct. at 2063. When that failure so undermines the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result, the vindication of defendant's constitutional right requires corrective action. Id. at 686, 104 S. Ct. at 2063.
Strickland v. Washington sets up a two-pronged test for determining whether counsel's assistance was so defective as to require reversal:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [ Id. at 687, 104 S. Ct. at 2064]
Moreover, the defendant must identify with some particularity the acts or omissions of counsel upon which he bases his claim of ineffectiveness. Id. at 690, 104 S. Ct. at 2065. They must be more than a differing view as to sound trial strategy, id. at 689, 104 S. Ct. at 2065; they must not have been a result of reasonable professional judgment. Id. at 689-690, 104 S. Ct. at 2065.
The precepts of Strickland and its tests have been adopted by New Jersey. See State v. Fritz, 105 N.J. 42, 58 (1987).
In the instant case, defendant contends he was inadequately represented at the waiver hearing and points more particularly to the failure of counsel to produce evidence of his rehabilitativeness.
At the time of the offense for which defendant was to be tried, he was 17. In order to obtain waiver, the State sought to show, in addition to the uncontroverted fact he was over 14, that there was probable cause to believe he had committed second degree aggravated assault. N.J.S.A. 2A:4A-26a. Once this was shown, waiver could occur unless defendant could show a likelihood of rehabilitation -- "that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to [his] reaching the ...