September 19, 2008
STATE OF NEW JERSEY PLAINTIFF-RESPONDENT,
ALPHONSE ANDERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-08-00735-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 8, 2008
Before Judges S.L. Reisner and Alvarez.
Defendant was convicted by a jury of unlawful possession of a handgun, N.J.S.A. 2C:39-5b; possession of a defaced firearm, N.J.S.A. 2C:39-3d; resisting arrest, N.J.S.A. 2C:29-2a(2); and obstructing the administration of law, N.J.S.A. 2C:29-1.
Following his conviction, defendant pled guilty to a "certain persons not to have weapons" charge, N.J.S.A. 2C:39-7b. On the latter charge, he was sentenced to five years, all without parole, concurrent with lesser sentences on the charges of which the jury convicted him. On this appeal, defendant challenges his convictions but not the sentence. We affirm without prejudice to defendant filing a petition for post-conviction relief (PCR).
The relevant trial testimony can be summarized briefly. At around 3:00 a.m., the Elizabeth police were called to the scene of a reported street fight outside a fast-food restaurant. Defendant was part of a group of people whom the police found gathered in front of the restaurant. After the police directed all of them, including defendant, to show their hands, defendant fled the scene rather than comply. While Officer Ben Caravalho was chasing defendant, he saw defendant throw a silver handgun into a salvage lot. Defendant resisted arrest when the police caught up with him. After defendant's arrest, Officer Caravalho recovered the gun from the salvage lot. He handled the weapon in order to secure and unload it.
On this appeal, defendant raises solely the following claims of ineffective assistance of counsel:
POINT I: THE DEFENDANT/APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.
A. Defense Counsel Failed To Meet The Strickland Standard By Failing To Make A Motion To Test The Weapon For Finger Prints.
B. Defense Counsel Failed To Meet The Strickland Standard By Failing To Make A Motion To Dismiss The Indictment.
C. Defense Counsel Failed To Meet The Strickland Standard By Making Prejudicial Statements Regarding The Defendant/Appellant To The Jury.
Defendant first asserts that his counsel should have had the discarded gun tested for fingerprints. He premises this claim in part on his factual assertion that "on numerous occasions, he informed his counsel that he did not have a gun on the night in question." There is no record support for this contention. Nor has defendant presented any expert evidence to support his implicit contention that fingerprints would likely have been recoverable from the gun. Ordinarily, claims of ineffective assistance of counsel will require consideration of evidence not part of the trial record and should be raised in a PCR petition rather than on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992). We conclude that, as with most claims of ineffective assistance of counsel, this contention should be raised in a PCR petition. See ibid.
In a related point, defendant contends that his counsel should have moved to dismiss the indictment. Defendant's argument assumes that his fingerprints would not have been found on the gun. This argument, likewise, should be raised in a PCR petition. See ibid.
Finally, defendant claims that his trial counsel made prejudicial remarks about him to the jury. While we might be inclined to conclude that counsel simply made a tactical decision to admit that his client made an error in judgment in trying to intervene in the street fight, while denying that his client possessed a handgun, we are unwilling to make a binding determination of this contention without giving defendant an opportunity to further develop the point on PCR.
To summarize, none of defendant's contentions are properly raised on direct appeal. Since he has not presented any arguments that warrant reversing his conviction on direct appeal, we affirm his conviction without prejudice to defendant's right to file a petition for post-conviction relief.
See State v. Sparano, 249 N.J. Super. 411, 419-20 (App. Div. 1991).
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