On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-08-01005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Axelrad and Sapp-Peterson.
Defendant Hubert Evans appeals from the orders denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing, in which he argues ineffective assistance of trial and appellate counsel. We affirm.
Defendant was convicted by a jury of third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); and third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three). The convictions arose out of an undercover drug surveillance in a high-drug trafficking area in Elizabeth. Officers Michael Gregory and Vincent Arena testified they observed defendant standing on the corner and pacing near an empty lot. The officers were directly across the street from defendant and watched his activities through binoculars. The officers observed a woman approach defendant, engage him in brief conversation and then walk away. Defendant then walked to the empty lot and retrieved a brown paper bag from a cinderblock wall, shook some items into his hand, and put the bag back into the wall. Defendant returned to the woman and handed the items to her in exchange for what appeared to be money. The transaction occurred within 1,000 feet of several schools.
After observing defendant's activities, the officers approached defendant, who promptly tossed to the ground a bundle containing three vials of cocaine, which the officers picked up. The officers then retrieved seven more vials of cocaine from the paper bag stashed in the cinderblock wall. The State also presented the testimony of an expert who opined that the drugs were possessed with intent to distribute.
Antoine Carter testified for the defense that on the subject date defendant was shooting dice when he was approached by two police officers. The witness claimed that the officers also spoke to another man and a woman, but let them go and only arrested defendant. Carter testified that he did not see defendant sell drugs, nor did he see defendant go near the cinderblock wall. Officer Gregory rebutted the claim that he and his partner had detained two additional people and permitted them to leave after defendant was arrested.
Following defendant's conviction, the court merged the first two counts into the third count, and sentenced defendant as a persistent offender to an extended term of ten years with a five-year period of parole ineligibility.
Defendant filed a direct appeal, asserting numerous challenges to pretrial rulings, his conviction and his sentence in a brief submitted by counsel and a pro se brief. In the latter, defendant argued that the Office of the Public Defender (OPD) violated its own policy to provide for indigent defendants by not retaining for his defense a fingerprint expert to perform an analysis of the cocaine vials. We affirmed defendant's conviction, summarily rejecting the arguments made by defendant in his pro se brief as without merit under Rule 2:11-3(e)(2), but vacated defendant's sentence and remanded for re-sentencing in accordance with State v. Natale, 184 N.J. 458 (2005) (Natale II). State v. Evans, No. A-6261-03T4 (App. Div. Dec. 13, 2005). The Supreme Court denied defendant's petition for certification on March 23, 2006. State v. Evans, 186 N.J. 365 (2006).
This PCR petition ensued and was denied by Judge Perfilio on January 12, 2007, following oral argument with defendant present, but without an evidentiary hearing.*fn1 In a pro se submission and that of PCR counsel, defendant claimed ineffective assistance of trial and appellate counsel and a variety of generalized cumulative trial errors and errors of trial counsel that he claimed denied him a fair trial. Specifically, defendant contended that his trial counsel was deficient in failing to obtain a fingerprint analysis of the cocaine vials and in failing to object to the testimony of the police expert, and ineffective assistance of appellate counsel in failing to remove from defendant's pro se brief on appeal his argument respecting the fingerprint analysis so it could be preserved for a PCR application.
Defendant's claims were rejected by the PCR court. The court noted that we had already ruled on defendant's argument of ineffective assistance regarding the lack of fingerprint analysis in our opinion on the direct appeal. Nevertheless, the court addressed the merits of defendant's claim and attributed trial counsel's decision to "a strategic judgment" not to "take the risk of getting the fingerprints [analyzed]" in light of the defense witness who was going to testify that he saw defendant shooting dice at the time the police arrived and never observed defendant selling drugs. The judge commented that based on his experience in presiding over drug trials, he never observed anyone taking fingerprints on vials of drugs; rather, eyewitness testimony would be presented and, if there was conflicting eyewitness testimony, that would also be presented for the jury to make a credibility determination.
Thus the court was not satisfied that defendant had satisfied the first prong of the Strickland/Fritz test to establish ineffective assistance of trial counsel on this point. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). See also State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland test in New Jersey). Nor was there any way for defendant to prove that his defense had been prejudiced because, by the time the issue was raised, the evidence had been handled by a number of people.
The court also found that defendant was procedurally barred from objecting to the testimony of the State's expert witness on PCR because that issue could have been challenged on direct appeal but was not. See R. 3:22-3 (PCR is not a substitute for appeal from conviction). The court found no constitutional grounds or fundamental injustice to justify relaxation of the procedural bar. R. 3:22-4. Nevertheless, the court again addressed defendant's claim on the merits and found that an expert was appropriately presented by the State as a necessary aid in ...