On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-12-3606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Lisa, Lihotz and Simonelli.
Defendant Ladel Williams appeals from the order of October 27, 2006, denying his petition for post conviction relief (PCR).
A jury convicted defendant of first degree attempted murder, second degree aggravated assault, third degree unlawful possession of a weapon, and second degree possession of a weapon for an unlawful purpose. Defendant also pled guilty to various drug charges under a separate indictment. Defendant received an aggregate term of imprisonment of fifteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed his sentence and conviction. We affirmed. State v. Williams, No. A-3328-00T4, (App. Div. May 2, 2002), certif. denied, 174 N.J. 363 (2002). Defendant then filed a pro se PCR petition. His assigned counsel filed an amended petition. Defendant claimed ineffective assistance of counsel. Without granting an evidentiary hearing, the judge denied the petition.
In this appeal, defendant contends he was deprived of the effective assistance of counsel and that we should reverse the judge's order or, at the very least, remand for an evidentiary hearing. We reject this contention and affirm.
Defendant and Richard Branch were involved in a drug turf war in Newark. At approximately 4:00 p.m. on August 27, 1998, Branch was standing in the area of 18th and Melrose Avenues when defendant approached and warned him to stay away from that location. The two men argued, and Branch left after defendant brandished a gun.
Branch returned to the area at approximately 11:45 p.m. He saw defendant walk past him down 18th Avenue and enter an apartment building on the corner. Approximately fifteen minutes later, Branch was standing in front of a Chinese restaurant on 18th Avenue near Melrose Avenue when he heard a shot. Branch tried to run, but was shot from behind and fell to the ground. After he was shot, Branch felt something on the left side of his chest. He turned and saw defendant with a gun. Defendant tried to shoot Branch again, but the gun malfunctioned. Branch slapped the gun away. Defendant then fled when he heard sirens. Branch later told the police that defendant was the shooter.
It was the State's theory that defendant was able to shoot Branch from behind by walking past him on 18th Avenue, entering an apartment building on the corner of 18th Avenue and Vermont Avenue, proceeding to the rear of that building to an alley, and then proceeding through the alley to Melrose Avenue. At trial, Branch testified that he had previously been inside the apartment building and it had a back door. A detective also testified the apartment building had a back door that exited into an alley which, if followed in one direction, led to a place on the corner where Branch was shot.
Defendant denied shooting Branch and said he was at least a block away from the site at the time of the shooting. Defendant contends that after hearing Branch's and the detective's testimony about the back door, he alerted trial counsel that there was no back door. He also contends that counsel refused his demand to request a recess to allow an investigator to photograph the building and alley in order to impeach Branch and the detective.*fn1
Defendant filed a PCR petition contending trial counsel was ineffective in failing to conduct a thorough investigation of the back door. In support of his petition, defendant relied solely on his brief, which contained hearsay statements about an alleged investigation by PCR counsel; uncertified, hearsay records from the City of Irvington Fire Department; and hearsay drawings purportedly of the apartment building. The motion judge denied the petition without an evidentiary hearing, finding that defendant failed to meet either prong of the Strickland*fn2 test.
A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). To establish a prima facie case of ineffective assistance of counsel, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When claiming trial counsel inadequately investigated his or her case, the petitioner "must assert the ...