On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 90-10-1961-I.
Before Judges Skillman, *fn1 Cuff and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Stanton Drisco is serving an aggregate sentence of twenty-years imprisonment with ten-years parole ineligibility for several Union County convictions including three counts of first-degree robbery, one count of second- degree possession of a firearm for an unlawful purpose, and one count of third-degree possession of a firearm without a permit. After exhausting all direct appeals, defendant petitioned for post-conviction relief (PCR). He contended first that trial counsel was ineffective because counsel did not present an alibi defense to the jury. Second, defendant argued that trial counsel had a conflict of interest because defendant had charged counsel with providing ineffective assistance during a prior Hudson County representation. Judge Walter Barisonek conducted an evidentiary hearing on these contentions and denied defendant's PCR petition in a thorough oral decision. Defendant now appeals from the denial, and we affirm.
We summarize only the facts necessary to understand the two contentions defendant urges on PCR. At approximately 1:00 p.m., two men committed an armed robbery at the offices of Luise Dairy Product in Elizabeth. Present were the Dairy's owner, office manager and secretary. Subsequently, the secretary identified defendant from a photo lineup of six photographs. She claimed to be "a hundred percent" sure that defendant was one of the robbers. Several days later, the office manager also positively identified defendant's photograph saying she was certain he was the man who held the gun during the robbery. The Dairy's owner, however, was unable to identify defendant from a photo lineup. Indeed, while the owner identified defendant in court as the perpetrator, the day before the owner initially identified defendant's attorney as the robber. He then changed his identification and pointed to defendant as the perpetrator because of his fuller face and height.
Defendant claimed at his PCR hearing that he could not have committed this robbery because he had an appointment at University of Medicine/Dentistry Hospital and Clinic in Newark when the robbery occurred. Defendant testified that he arrived at the hospital at 10:00 a.m. and saw a doctor around 11:00 - 11:30 a.m. After the appointment, defendant claimed he ate lunch with Eleanor Hannah (now deceased) and his "common-law wife" Lorraine Drisco. At about 1:30 p.m. defendant and his "wife" left the hospital, took a bus home, and arrived in Elizabeth around 2:30 p.m.
After initially being represented by attorneys from the public defender's office, defendant retained counsel for the two armed robbery cases pending against him, one in Hudson County and the other in Union County, which is the matter at issue in this appeal. Retained counsel had grown up with defendant in Elizabeth and had known defendant and his family for many years. Counsel described his relationship with defendant as "friendly."
Defendant was convicted in Hudson County and shortly thereafter, just prior to his Union County trial, defendant filed a motion seeking a new trial alleging that trial counsel rendered ineffective assistance in the Hudson County case. Specifically, defendant claimed that counsel had "sold him out" to the prosecutor.
After trial counsel learned of the ineffective assistance claim that defendant was pressing against him, counsel discussed the matter with defendant. Counsel was not upset by the ineffective assistance allegation but was quite upset about being charged with selling defendant out. Counsel told defendant that if he wanted he could fire him. Counsel said "I don't have to represent you in Union County, . . . just fire me and it's over." Defendant admitted that he "had words with" counsel but he never fired him from the Union County case and never made a motion before or during trial to have counsel relieved.
We start by recognizing that every criminal defendant is guaranteed effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2062-63, 80 L. Ed. 2d 674, 692 (1984). To establish a prima facie case of ineffective assistance, defendant must demonstrate two factors: first, that defense counsel's performance was deficient; and second, that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. State v. Fritz, supra, 105 N.J. at 63. A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. U.S. v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, any claimed errors of counsel must amount to more than mere tactical ...