On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 95-07-2365-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Wefing and R. B. Coleman.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged with one count of second-degree conspiracy, N.J.S.A. 2C:5-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3; two counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5); one count of first-degree carjacking, N.J.S.A. 2C:15-2; one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). A jury found defendant guilty of all charges except that of carjacking. The trial court sentenced defendant to an aggregate term of thirty-four years in prison and specified that defendant would have to serve fourteen years before he would be eligible for parole. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Kinman, No. A-6008-97T4 (App. Div. June 24, 1999). The Supreme Court denied defendant's petition for certification. 164 N.J. 188 (2000).
Thereafter, defendant filed a pro se petition for post-conviction relief in which he contended that he had been denied the effective assistance of counsel at trial. Specifically, he alleged his trial attorney was ineffective for failing to request a Wade hearing, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967), for failing to request either a DNA test or a paraffin test and with regard to particular aspects of the trial court's charge. Counsel was assigned to represent defendant in connection with his petition for post-conviction relief. Counsel filed an amended petition alleging that defendant's trial attorney was ineffective for failing to request a voice-identification and in his cross-examination of one of the victims. The trial court denied defendant's petition after hearing oral argument but without conducting an evidentiary hearing.
On appeal, defendant raises the following issues:
THE DEFENDANT RECEIVED THE INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
PURSUANT TO STATE V. WEBSTER, THE CONTENTIONS IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF ARE HEREBY INCORPORATED BY REFERENCE AS IF SET FORTH IN FULL HEREIN.
Certain fundamental principles guide our analysis of these contentions. To prevail on a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984), but a defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S.Ct. 2039, 2043-46, 80 L.Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel).
The "benchmark" for evaluating a claim of ineffective assistance of counsel "must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d 692-93. A defendant making such a claim must demonstrate first, that counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. ...