On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-10-1547.
The opinion of the court was delivered by: Lyons, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Defendant Gary Gaither appeals an order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of appellate counsel. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On July 31, 1998, defendant went to the Plainfield police department to complain about his vehicle being towed. He was directed to the Traffic Violations Bureau where he got into an argument with the desk officer. Lt. Mark Edwards (Edwards), the shift commander on duty that day, heard "some sort of a verbal disturbance going on out at the front desk" and went to investigate. Edwards encountered defendant, who was upset and angry. Defendant argued with Edwards until defendant was told to leave the building.
Edwards had a previous encounter with defendant in January 1998, during which Edwards learned that defendant's New Jersey driving privileges had been suspended. In July, when Edwards saw defendant leave the police station, get into a vehicle, and drive off, Edwards broadcast on the police radio a description of the vehicle, the direction in which he was headed, and his belief that the driver was driving with a suspended license. Edwards directed Detective Jorge Jimenez, who was in an unmarked police car equipped with lights and siren, to stop defendant.
Meanwhile, Officer Israel Valentin was in a marked police car and joined in pursuit of defendant. Lights and sirens were activated in both the marked and unmarked police vehicles. Nevertheless, defendant failed to stop and continued in a thirty-to-forty-mile-per-hour chase through a residential area, ignoring stop signs, and traveling in the opposing lane of traffic. Defendant was ultimately stopped in front of his home, arrested, and charged with eluding and resisting arrest.
On October 29, 1998, defendant was indicted and charged with second-degree attempted eluding under N.J.S.A. 2C:29-2 and fourth-degree resisting arrest under N.J.S.A. 2C:29-2. Prior to the commencement of trial, the resisting arrest charge was reduced to a disorderly persons offense. Defendant's first trial ended in a mistrial. His second trial was held on August 29 and 30, 2000. At trial, defendant attempted to cross-examine Edwards on the incident that occurred in January 1998, when Edwards had dealings with defendant regarding his license. The trial judge did not permit that, ruling that it was not relevant evidence. Defense counsel argued that the testimony would demonstrate animosity between Edwards and defendant and that Edwards had a "motive for lying." The trial judge ruled that Edwards was not a witness to the eluding and, therefore, the testimony was not relevant.
The jury convicted defendant of the lesser-included offense of third-degree eluding. On January 5, 2001, defendant was sentenced to one year of probation with sixty days on the Sheriff's Labor Assistance Program, along with various fines and penalties.
Defendant appealed his conviction. On appeal, defendant's appellate counsel raised two points. The first was that the trial court violated defendant's constitutional rights to due process and to present a defense when it prohibited him from cross-examining Edwards about their prior encounter. The second point raised was that defendant's sentence was manifestly excessive. On June 19, 2002, our court, in a written decision, denied defendant's appeal. The Supreme Court denied certification on July 21, 2003. State v. Gaither, 177 N.J. 496 (2003).
Sometime before April 25, 2003, defendant visited his appellate counsel to inquire about the status of his appeal. Defendant's appellate counsel then learned that his earlier attempts to contact defendant had been unsuccessful because his office had used the wrong address, despite the correct address being handwritten on the pre-sentence report in the file. On April 25, 2003, appellate counsel wrote a letter to the trial judge documenting appellate counsel's error and acknowledging "that I was careless in not noticing the corrected address and thereby caused [defendant] not to have contact with his appellate attorney." On September 16, 2003, defendant filed his petition for PCR. The trial judge conducted a hearing on December 20, 2005. At the hearing, defendant's sole basis for relief was ineffective assistance of appellate counsel.
The trial court applied the "Strickland-Preciose"*fn1 standards. The court found that even if appellate counsel's failure to communicate fell below the objective standards of reasonableness, defendant did not demonstrate a reasonable probability that but for counsel's unprofessional errors, the results of the appeal would have been different. The trial judge declined to extend the holding in State v. Rue, 175 N.J. 1 (2002), to appellate counsel. In Rue, the Supreme Court held that an attorney representing a ...