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State v. Burkes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CURTIS BURKES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, 01-01-0023.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 5, 2007

Before Judges Lintner and Seltzer.

Defendant appeals from the denial of his post-conviction relief (PCR) petition without an evidentiary hearing, and we affirm.

Tried to a jury, defendant was convicted in 2001 of third-degree theft from the person, N.J.S.A. 2C:20-3. He was sentenced as a persistent offender to an extended custodial term of ten years with a five-year parole disqualifier. We affirmed on his direct appeal, State v. Burkes, No. A-4982-01T4 (App. Div. August 7, 2003) and certification was denied. 178 N.J. 454 (2004). Defendant filed a PCR petition on March 18, 2004, and on September 19, 2005, Judge Robert. G. Millenky considered the application. He permitted testimony from defendant to supplement the petition and, after hearing counsel, delivered a thoughtful and comprehensive oral opinion, finding defendant had failed to make a prima facie case for entitlement to relief. Accordingly, Judge Millenky denied the petition without a hearing. His decision was memorialized in an October 14, 2005, order from which defendant now appeals.

Defendant advances the following arguments for our consideration:

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

POINT 1

UNSIGNED INDICTMENT

POINT 2

INEFFECTIVE ASSISTANCE OF COUNSEL

POINT 3

EXCESSIVE SENTENCE

Defendant has abandoned his argument concerning the alleged failure of the State to have the indictment signed. His argument with respect to the length of the sentence, having been considered and rejected on direct appeal, Burkes, supra, slip op. at 7, may not be considered on this application. R. 3:22-5. See State v. McQuaid, 147 N.J. 464, 484 (1997) (noting that "[i]f the same claim is adjudicated on the merits on direct appeal a court should deny PCR on that issue"). In any event, we find no abuse of the judge's sentencing discretion. State v. Roth, 95 N.J. 334, 365-66 (1984).

An understanding of defendant's claims of ineffective assistance of counsel requires a brief synopsis of the facts surrounding the underlying events, which we take from our opinion affirming the conviction. Defendant was at a liquor store in Lindenwold when the store owner saw him acting suspiciously. The owner saw defendant, with the assistance of two other individuals, secrete two liquor bottles underneath defendant's jacket. When defendant went to the checkout counter with one item in his hand, the owner confronted him. As the owner approached defendant, indicating that items had been hidden on defendant's person, "defendant pushed him away. A scuffle ensued with both wrestling each other to the floor. During the scuffle the bottles rolled out." Burkes, supra, slip op. at 2. Defendant was subdued and told to wait for the arrival of the police. Despite that instruction, "[d]efendant then bolted for the door pushing one of the [persons who had subdued him initially] to the floor. However, defendant's attempt to escape was thwarted by a customer who tackled him to the ground." Id. at 3.

Defendant was originally charged with second-degree robbery, N.J.S.A. 2C:15-1. Nevertheless, the judge also charged the lesser included offenses of theft from the person, N.J.S.A. 2C:20-3, and shoplifting, N.J.S.A. 2C:20-11. Defendant, on the PCR petition, claimed that he had admitted to one of the arresting officers that he was guilty of shoplifting and that admission was, apparently, contained in the officer's report. Defendant also claimed to have told another officer that the event had been videotaped by the store's surveillance cameras. Eventually, the jury heard a stipulation to the effect that the officer had inquired as to the videotape and was told that the events were not recorded.

Defendant identifies the deficiencies of counsel as follows:

A. FAILURE OF TRIAL COUNSEL TO CROSS-EXAMINE HAYDEN ON DEFENDANT'S ADMISSION TO "SHOPLIFTING" AND HIS REPORT TO THE SAME EFFECT

B. FAILURE TO CALL GRIMES TO TESTIFY THAT THERE WAS NO VIDEOTAPE OF THE INCIDENT

C. FAILURE OF TRIAL COUNSEL TO ADEQUATELY COMMUNICATE WITH THE DEFENDANT

To prevail on the claim of ineffective assistance of counsel, defendant was required to show both that counsel's performance was so deficient "that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and "that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). A defendant may not meet the first prong by second-guessing counsel's actions, which are insulated to the extent they represent reasonable tactical choices. State v. Fisher, 156 N.J. 494, 500 (1998). A defendant may not meet the second prong without showing that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).

Although the nature of PCR relief often justifies an evidentiary hearing, not all petitions require such a hearing. A hearing is required only when a defendant presents a prima facie claim. State v. Preciose, 129 N.J. 451, 462 (1992). A prima facie claim is made out when defendant demonstrates "the reasonable likelihood of succeeding under the test" described in Strickland and Fritz. Id. at 463.

The record is devoid of any proof of trial counsel's deviation or that a different course of action would have probably changed the result of the trial. Defendant's allegations that counsel did not adequately consult with him is belied by the record. Defendant's testimony before Judge Millenky revealed that counsel had spoken with defendant and that those discussions were sufficiently complete that it was not necessary to repeat them. The judge found that "trial counsel was well aware of what the defendant thought was relevant in this case." The only real failure identified by defendant was the difficulty in communicating about the timing of the trial. The judge found that "[t]here was no indication that there was a failure to discuss . . . trial tactics . . . .

[N]o suggestion that the actual communication that occurred was deficient with respect to how it affected the trial itself." That factual determination is grounded in the record and is entitled to great deference from us. See State v. Locurto, 157 N.J. 463, 470-72 (1999); State v. Johnson, 42 N.J. 146, 157, 162 (1964).

Defendant's claim that counsel should have attempted to elicit testimony of his "admission" that he was shoplifting is without merit because the failure, even if a deviation, could not have affected the result because the statement was, as the judge properly found, inadmissible. The statement was hearsay, N.J.R.E. 801(c), and we find no exception that would have allowed it to be heard by the jury. Defendant's assertion that it might be admitted as a "present sense impression" pursuant to N.J.R.E. 803(c)(1), or an "excited" utterance" pursuant to N.J.R.E. 803(c)(2) lack merit. Each Rule, assuming them to be applicable to a self-serving statement by a criminal defendant, requires the statement be made "without opportunity to deliberate or fabricate." That opportunity was clearly present here.

Finally, defendant claims that live testimony should have been given respecting the efforts made to locate the videotape as opposed to a stipulation that inquiry was made and information received that the event was not recorded. He makes this claim, however, with no explanation as to how that testimony would have benefited him or probably changed the outcome of the trial. The judge properly concluded that the stipulation tracked the expected testimony and "that in the final analysis no video actually was available." We also agree with the judge that calling either Grimes or Hayden might have resulted in the jury hearing information prejudicial to defendant.

Affirmed substantially for the reasons given by Judge Robert G. Millenky on the record on September 29, 2005.

20070227

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