March 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE ANDERSON A/K/A MAURICE D. ANDERSON A/K/A DARNELL ANDERSON A/K/A MURICE ANDERSON A/K/A KASEEM LAWRENCE A/K/A DARNELL SANDERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-0559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2008
Before Judges Cuff and Simonelli.
Defendant, Maurice Anderson, appeals from the order of July 13, 2006, denying his petition for post-conviction relief (PCR). On this appeal, defendant raises the following arguments:
THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.
We reject these arguments and affirm, substantially for the reasons articulated by Judge Lombardi in his comprehensive, well-reasoned oral opinion of June 30, 2006.
A jury found defendant guilty of four counts of first degree armed robbery; one count of third degree unlawful possession of a weapon; four counts of second degree possession of a weapon (handgun) for an unlawful purpose to use it against a person in a robbery; one count of third degree possession of a controlled dangerous substance (CDS) (cocaine); one count of second degree possession of cocaine with the intent to distribute; one count of fourth degree unlawful possession of a weapon (mace); and one count of third degree possession for an unlawful purpose. The charges arose from two separate armed robberies of two small grocery stores, and two hundred vials of cocaine found in defendant's getaway car. Defendant is serving an aggregate term of forty years, thirty-three of which are subject to the No Early Release Act*fn1 85% parole ineligibility term. We affirmed defendant's conviction and sentence on direct appeal. State v. Anderson, No. A-3563-01T4 (App. Div. Nov. 20, 2003). The Supreme Court denied defendant's petition for certification. State v. Anderson, 180 N.J. 152 (2004).
Defendant then filed the PCR petition, contending his trial counsel was ineffective because he failed to use an alibi witness; allow defendant to testify; present evidence that all the evidence of the crime was found on a co-defendant; request a Wade*fn2 hearing; conduct any investigation or background checks on the victims or co-defendants; present evidence that defendant never met one of his co-defendants until the day they were arrested; and cross-examine a co-defendant about the asserted motive for the robbery. Defendant also contended his trial counsel was ineffective because the judge erred in allowing the police to utilize photos as evidence at trial after a police officer stored them on his home computer; he was denied his right to a separate trial; and the judge conducted an in-camera hearing in the absence of defendant's counsel regarding statements made to a juror by a third party.
In his oral opinion, Judge Lombardi addressed each of these contentions and concluded they were without merit and did not warrant an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[I]n order to establish a prima facie claim, a petitioner must do more that make bald assertions that he was denied the effective assistance of counsel."), certif. denied, 162 N.J. 199 (1999); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984); State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Fritz, 105 N.J. 42, 58 (1987).
Following our review of the record, we are not persuaded by defendant's arguments. We are satisfied that Judge Lombardi's factual findings that defendant failed to establish a prima facie claim of ineffective assistance of trial counsel are amply supported by sufficient credible evidence, and we have no occasion to disturb them. State v. Johnson, 42 N.J. 142, 162 (1964).
We also conclude that defendant's contention his PCR counsel was ineffective is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add one comment.
To succeed on a claim of ineffective assistance of counsel, defendant must establish that counsel's performance was seriously deficient and that the deficient performance prejudiced his right to a fair disposition of the charges. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Defendant has failed to meet these requirements as to either his trial or PCR counsel.