May 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AL-WAHID ALI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-10-1434.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2009
Before Judges Skillman and Graves.
Defendant Al-Wahid Ali appeals from an order dated July 9, 2007, denying his petition for post-conviction relief (PCR).
After reviewing defendant's arguments in light of the record and the applicable law, we affirm.
In a six-count indictment, defendant was charged with third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft, N.J.S.A. 2C:20-3 (count two); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count three); second-degree eluding, N.J.S.A. 2C:29-2(b) (count four); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6) (count five); and third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count six). Defendant was tried before Judge Walter R. Barisonek and a jury. On May 22, 2002, the jury found defendant guilty on all counts, except for count three.
On July 26, 2002, defendant was sentenced on count four (second-degree eluding) to an extended term of eighteen years imprisonment with a mandatory period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant received a consecutive five-year term with two years of parole ineligibility on count one (third-degree burglary), and a consecutive ten-year term with five years of parole ineligibility on count five (second-degree aggravated assault). Concurrent sentences were imposed for the other offenses.
Judge Barisonek amended the judgment of conviction on October 18, 2002, to clarify that the eighty-five percent period of parole ineligibility for second-degree eluding applied only to the maximum base term of ten years rather than the eighteen-year extended term. As a result, defendant received an aggregate prison term of thirty-three years with fifteen-andone-half years of parole ineligibility.
In an unreported decision, this court affirmed defendant's convictions but remanded the matter for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Ali, No. A-6525-01 (February 9, 2006). The Supreme Court granted defendant's petition for certification of his sentence, 188 N.J. 264 (2006), and remanded for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). Defendant has not raised any sentencing issues in this appeal.
The facts underlying defendant's convictions were summarized in our prior decision and need not be repeated here. As we noted: "Officers Johnson, Cook, and Giunta positively identified the defendant as the person who they saw run from the stolen Tahoe after it collided with a van on July 27, 1999. After a short chase, defendant was taken into custody. This case turned on credibility, and the jury believed the police officers." State v. Ali, supra, slip op. at 18.
Defendant filed a PCR petition in September 2006, alleging that his trial counsel and his appellate counsel were both ineffective. Following oral argument on July 9, 2007, Judge Barisonek rendered a comprehensive oral decision denying defendant's petition.
On appeal, defendant presents the following arguments through counsel:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF COUNSEL.
A. TRIAL COUNSEL FAILED TO CONSULT ADEQUATELY WITH DEFENDANT.
B. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION.
C. TRIAL COUNSEL ERRONEOUSLY ADVISED DEFENDANT TO TESTIFY ON HIS OWN BEHALF.
D. TRIAL COUNSEL SHOULD NOT HAVE HAD DEFENDANT'S SON TESTIFY.
Defendant also raises a number of arguments in his pro se brief filed on July 23, 2008. We are satisfied, however, that the evidence of defendant's guilt was overwhelming, and defendant's arguments do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm with only the following comments.
To establish a prima facie claim of ineffective assistance of counsel, a convicted defendant must establish a reasonable likelihood of success under the Strickland/Fritz test.*fn1 State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-part test, a defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
Because he presided over defendant's jury trial, Judge Barisonek was thoroughly familiar with the facts of the case, and he was uniquely qualified to evaluate defendant's ineffective assistance of counsel claims. In rejecting defendant's arguments, Judge Barisonek made detailed findings of fact, which are fully supported by the record, and he correctly determined that there was no evidence to support defendant's claims. Accordingly, we affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Barisonek in his oral decision on July 9, 2007.