On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2007
Before Judges Sabatino and Baxter.
Defendant Soo W. Kim appeals from a September 27, 2006 order denying his first petition for post-conviction relief (PCR). On March 14, 2006, defendant was convicted of second degree complicity for his role in providing a fraudulent immigration document to a state agency, in violation of N.J.S.A. 2C:2-6 and N.J.S.A. 2C:21-17.2 (count one); fourth degree complicity and forgery, in violation of N.J.S.A. 2C:2-6 and N.J.S.A. 2C:21-1(a)(3) (count two); and second degree sale of a simulated document, in violation of N.J.S.A. 2C:21-2.1 (count three). The court sentenced him to concurrent terms of six years imprisonment on counts one and three, and a seven month concurrent term of imprisonment on count two. Defendant did not file a direct appeal.
On June 12, 2006, defendant filed a petition for post-conviction relief in which he asserted that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and Art. I, paragraph 10 of the New Jersey Constitution. The petition alleges that his trial attorneys*fn1 breached their duty of loyalty to him by accepting a legal fee paid on his behalf by a third party Tao Lee, "an unindicted co-conspirator." Defendant further alleged that the fee arrangement deprived him of "reasonably competent advice and counsel unfettered by duplicity." He argues that the trial court erred when it denied his petition for post-conviction relief without affording him an evidentiary hearing, pursuant to State v. Preciose, 129 N.J. 451, 462 (1992). We disagree and affirm.
The testimony at trial established that defendant assisted Mi Suk Park Lee*fn2 in her effort to fraudulently obtain a New Jersey driver's license. Park was ineligible to obtain one because she did not live in New Jersey and her tourist visa had expired. Park and her husband learned from other members of the Korean community that the East West Study Abroad Center (East West) in Fort Lee could "help" them overcome those obstacles in return for payment of a substantial fee. Park and her husband communicated with the director of East West, Tao Lee. Lee directed Park to deliver her Korean passport to his office and to return approximately two months later, at which time one of Lee's employees would drive her to the Motor Vehicle Commission (MVC) office in Lodi to assist her in obtaining a driver's license. The fee for such assistance was $1200.
On August 17, 2004, Park and her husband returned to East West, where they were met by defendant who drove them to the MVC office in Lodi. Defendant presented Park with her passport, which had been altered to show a fraudulent date of entry into the United States. Defendant also provided her with a Verizon phone bill in her name, which listed her residence as 333 Grand Avenue in Palisades Park, even though she did not reside there. Defendant explained to Park what she should do once she entered the MVC office.
When Park was unable to complete the address section of the driver's license application, an MVC employee asked her where she lived. Park became jittery, and answered Pennsylvania, then New York, and then Palisades Park. Suspicious, the MVC employee showed Park's documents to Doris Topham, an MVC employee who was an expert in document fraud. Topham's review of Park's Korean passport and visa caused her to conclude that the documents had been fraudulently altered. Lodi police were called, and they questioned Park about the documents and asked her who had driven her to the MVC office. Park's answers led them to arrest defendant, who was sitting in his car fifty feet from the entrance to the MVC office.
Defendant testified that he worked for Lee earning $400 per week driving applicants to motor vehicle offices and performing miscellaneous errands for Lee. He testified that when he drove Park and her husband to the MVC office in Lodi, he had simply presented them with a sealed envelope containing the documents that Lee had provided. He never inspected the documents before handing them over to Park, and was not asked to prepare, compile or alter any documents. Defendant denied giving Park specific advice on how to complete the driver's license application and denied instructing her to return to his car in the parking lot for further assistance if she should encounter any difficulty in completing the necessary documents. Until Park was arrested, defendant allegedly had no idea that the documents were fraudulent, explaining that he was merely transporting Lee's customers to the DMV office without ever being aware that the documents were fraudulent.
In rebuttal testimony, both Park and her husband testified that the documents defendant handed to her were not in a sealed envelope. The jury returned a verdict finding defendant guilty on all three counts.
Prior to trial, the State provided defendant with a plea offer in which the State would recommend a term of probation in return for defendant's plea of guilty and agreement to cooperate with the State and testify against Lee. Defendant rejected that plea offer, even after the judge reviewed its terms with him at length, and demanded a trial. One day earlier, on May 3, 2005, Park and her husband, who were also named as defendants in the same indictment, entered pleas of guilty in which they implicated defendant. During the pretrial hearing and at trial, defendant was represented by attorney Elton Bozanian.
In his opening statement, Bozanian emphasized that defendant was not the person who dealt with the Parks and that it was Lee, not defendant, who had instructed Park to drop off her passport and pay a fee of $1200. Bonzanian also argued in his opening statement that defendant had unwittingly and unsuspectingly been used by Lee, that ...