January 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAMIR AZIZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-11-1996.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Fisher and C.L. Miniman.
Following a jury trial, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b). The trial judge granted the State's motion to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3(a), and imposed a fifteen-year prison term with a seven-and-one-half year period of parole ineligibility.
Defendant appealed, arguing that the trial judge failed to properly instruct the jury on identification, that the judge's refusal to grant his motion to acquit was erroneous, and that he was denied the effective assistance of counsel. In an unpublished opinion filed on January 4, 2006, we rejected all these arguments and affirmed. State v. Aziz, No. A-1906-04T3 (App. Div. Jan. 4, 2006). The Supreme Court denied defendant's petition for certification on September 19, 2006. 188 N.J. 356.
On November 28, 2006, defendant filed a pro se petition for post-conviction relief (PCR). An amended petition was filed by counsel on defendant's behalf a few months later. Judge Paul M. DePascale, who also presided over the trial, heard oral argument and denied defendant's PCR petition for the reasons set forth in an oral decision.
Defendant appealed. Through counsel, defendant presents the following arguments for our consideration:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to present the trial testimony of Davon Butler, the real driver of the vehicle.
B. Trial counsel failed to object to erroneous charges.
II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
III. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S CONDUCT DID NOT CREATE A RISK OF DEATH OR INJURY.
IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT FAILED TO PROVIDE DEFENDANT WITH ALL OF THE APPLICABLE JAIL TIME CREDITS.
V. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
VI. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Defendant also filed a pro se brief in which he makes the following argument:
DEFENDANT WAS CONVICTED OF SECOND DEGREE ELUDING WHILE THE [ELEMENTS] OF THE CRIME ONLY CONSTITUTED THAT OF A THIRD DEGREE CRIME IN VIOLATION OF U.S. CONST. AMENDS VI AND XIV AND N.J. CONST. (1947) ART. I [PARAGRAPHS] 9 AND 10.
Even though most of these arguments were either considered during direct appeal or could have been asserted on that occasion, which would represent a basis for refusing to consider them now, we have thoroughly reviewed the record and find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We briefly address on its merits only Point I(A).
The facts are more fully discussed in our opinion on the direct appeal and need only be briefly summarized here. On August 11, 2003, at 2:30 a.m., Jersey City police officers observed two speeding vehicles, one of which was a red Neon. The officers activated their patrol car's overhead lights, pursued, and directed the Neon to stop on Bergen Avenue. One of the officers exited the patrol car and approached the parked Neon; when the officer got as close as three or four feet from the Neon, it sped off. The officer, who was able to observe the Neon's occupants, returned to the patrol car, activated the siren and pursued the Neon as it went through a red light and sped toward Routes 1 and 9 heading in the direction of South Kearny and Newark. The Jersey City officers broke off pursuit and the dispatcher alerted police in the jurisdictions toward which the Neon was headed.
Newark police located the Neon and advised the Jersey City police. The officer who had approached the Neon on Bergen Avenue went to Newark and identified a Neon parked on Jabez Street as the same vehicle he had stopped earlier. The officer also observed two males in the rear seat of a Newark patrol car and was able to identify them as the occupants of the Neon he had stopped on Bergen Avenue. The officer recognized defendant as the driver of the Neon; the other individual was Davon Butler, whom the officer identified as the Neon's passenger. Based on these and other facts, defendant was convicted of eluding.
In his PCR petition, defendant asserts that his attorney's failure to call Butler to testify at trial demonstrates he was deprived of his constitutional right to the effective assistance of counsel. Defendant argues that trial counsel "could have offered Butler's testimony which could have either refuted or discredited much of the State's evidence" and could have "mounted a successful defense based on the misidentification of defendant as the driver of the vehicle." In other words, defendant asserts that, if called, Butler would have acknowledged he and not defendant was the driver of the Neon. We agree with Judge DePascale that defendant's "optimism regarding the potential trial testimony of Davon Butler falls far short of his proof requirements on this petition." The simple fact of the matter is that defendant did not provide the PCR court with an affidavit or certification from Butler confirming what defendant contends would have been Butler's trial testimony if called. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, the judge perceptively recognized that no inference that Butler would have so testified should be drawn from the sparse factual record on this point because "[i]f Mr. Butler was eager to accept responsibility as the defendant suggests, he could have easily done so at the time of his arrest or at any point thereafter."
For these reasons, as well as those set forth in Judge DePascale's oral decision, we reject Point I(A), and, as we have already noted, we find insufficient merit in all defendant's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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