February 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERRY AMBROSELLI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-06-1818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Skillman and Graves.
The trial court found defendant Jerry Ambroselli guilty after a bench trial of third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1). At sentencing on April 14, 2000, defense counsel noted that defendant had been abusing drugs for a number of years, and he asked the court to impose a sentence of probation with county jail time as a condition of probation. On the other hand, because this was defendant's eleventh indictable conviction, the State asked the court to impose a five-year prison term with a period of parole ineligibility. The court sentenced defendant to a five-year term of imprisonment and imposed the statutorily mandated penalties, fees, and assessments. On appeal, we affirmed defendant's conviction and his sentence. State v. Ambroselli, No. A-6008-99T4 (App. Div. Jan. 29, 2002), certif. denied, 174 N.J. 40 (2002).
In April 2003, defendant filed a pro se petition for post-conviction relief (PCR), which was subsequently amended. In his amended petition, defendant alleged he was denied the effective assistance of counsel because trial counsel was not prepared to try the case, and his attorney never explained to him that he had a right to a jury trial. In addition, defendant claimed the trial judge never asked him whether he was knowingly and voluntarily waiving his right to a jury trial.
In denying defendant's petition, the PCR court noted that defendant and his attorney had both signed a trial memorandum stating "[d]efendant requests a non jury trial and expressly waives his right to a jury trial." In addition, the PCR judge read from a transcript of the court proceedings on February 23, 2000, which contained the following colloquy between the trial court and defendant:
THE COURT: Do you understand further, sir, that you have a constitutional right to a jury trial? In other words, we can select a jury and begin [tomorrow] and a jury of your peers can decide whether you are guilty or not.
You know you do have this constitutional right?
THE DEFENDANT: Yes.
THE COURT: You understand further you have a right to waive or give up that right and to proceed with a non-jury trial?
Do you understand, sir?
THE DEFENDANT: Yes.
THE COURT: What's your pleasure? Which of the two would you rather do?
THE DEFENDANT: Non-jury.
THE COURT: Alright, do you understand -- Excuse me. Are you making this choice freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: Did anyone threaten, force or coerce you?
THE DEFENDANT: No.
THE COURT: Did anyone promise you anything?
THE DEFENDANT: No.
THE COURT: Did you have ample opportunity to speak to your attorney with regard to this matter?
THE DEFENDANT: Yes.
Based on the written waiver that was signed by defendant and his attorney, and the discussions which took place between the court and defendant on both February 23, 2000, and the following day, the PCR court rejected defendant's claim that he did not freely and voluntarily waive his right to a jury trial. In addition, after reviewing defendant's claims that trial counsel was not properly prepared to try the case, the trial court found defendant's allegations were not supported by the record.
On appeal, defendant presents the following arguments:
THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE AND CONSIDER POTENTIAL DEFENSES, FAILING TO ORDER THE GRAND JURY TRANSCRIPT, FAILING TO BE PREPARED FOR TRIAL, AND FAILING TO COMMUNICATE WITH THE DEFENDANT.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL.
C. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE WHETHER THE DEFENDANT HAD VOLUNTARILY WAIVED HIS RIGHT TO A JURY TRIAL.
THE PCR COURT ERRED IN REJECTING THE DEFENDANT'S ARGUMENT THAT HIS CRIMINAL COMPLAINT SHOULD BE DISMISSED AS CONSTITUTIONALLY DEFECTIVE UNDER N.J.S.A. 2B:12-21b.
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF SUPPORT HIS REQUEST FOR POST-CONVICTION RELIEF.
In addition, defendant presents the following argument in a pro se supplemental brief:
N.J.S.A. 2B:12-21(b) IS UNCONSTITUTIONAL UNDER THE "SEPARATION OF POWERS" DOCTRINE IN ARTICLE III, PAR. 1 OF THE NEW JERSEY CONSTITUTION, AND THUS WOULD WARRANT DISMISSAL OF DEFENDANT'S CRIMINAL COMPLAINT AS BEING CONSTITUTIONALLY DEFECTIVE.
After considering these arguments in light of the record and the applicable law, we conclude that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Snyder on July 15, 2005, with the following comments.
The only witnesses to testify at defendant's trial were two members of the Camden City Police Department: Officer Gregory Carlin and Officer George Reese. On March 28, 1999, while conducting surveillance during a "street level drug trafficking" investigation, Carlin observed defendant engage in a hand-to-hand transaction which, based upon his training and experience, he believed was a drug transaction. According to Carlin, defendant exited from the rear seat of a two-door brown Toyota and after a brief conversation with another individual, defendant handed him paper currency in exchange for a clear plastic sandwich bag with several smaller items in it. Officer Carlin testified he observed the exchange while conducting surveillance from a distance of approximately thirty feet.
Following the exchange, defendant got back into the car and as the vehicle attempted to leave the area, Carlin advised a backup unit to stop the vehicle. Officer Reese testified he stopped the brown Toyota when it was about a block away from the location where the exchange had taken place. As Reese approached the Toyota, he observed the front passenger throw several small clear plastic bags from the car. When the bags were recovered and tested, it was confirmed that they contained cocaine. The individuals in the vehicle were searched and no other drugs were found. Carlin testified that after the brown Toyota was stopped, he identified defendant as the person who had engaged in the hand-to-hand exchange, and he made an in- court identification of defendant during the trial. Accordingly, there was strong evidence of defendant's guilt.
A defendant alleging ineffective assistance of counsel must establish that his "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 v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). New Jersey has adopted the standards set forth in Strickland. See State v. Fritz, 105 N.J. 42, 58 (1987) ("We therefore hold that . . . a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated.").
To establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. State v. Preciose, 129 N.J. 451, 463-64 (1992). First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. Ibid. Second, defendant must show that the deficient performance materially affected the outcome of his trial. Ibid. In the present matter, we have reviewed the alleged deficiencies in trial counsel's preparation and investigation and, like the PCR judge, we are convinced defendant's allegations fail to meet either the performance or the prejudice prong of the Strickland/Fritz test. "Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exist." State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000).
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