January 22, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-0082.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2010
Before Judges Rodríguez and Reisner.
Defendant James Jackson appeals from a January 19, 2007 order denying his petition for post-conviction relief (PCR). We affirm.
In summary, defendant was arrested after a police officer, who was investigating a possible car theft, saw defendant throw an item away. The officer retrieved the item, concluded it was a bag of drugs, and arrested defendant who was found to have over $500 in cash on his person. The State testing lab determined that the substances in the bag were cocaine and hydrocodone. The defense stipulated that the scene was within 1000 feet of a school.
Based on that evidence, defendant was convicted by a jury of four third-degree offenses: possession of cocaine, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); cocaine possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); school zone CDS possession with intent to distribute, N.J.S.A. 2C:35-5a, -7; and possession of CDS (hydrocodone), N.J.S.A. 2C:35-10a(1). He was sentenced to five years in prison with a three-year parole bar.
On defendant's direct appeal, we affirmed his conviction, but remanded for re-sentencing. State v. Jackson, No. A-2103-03 (App. Div. Oct. 20, 2004), certif. denied, 182 N.J. 430 (2005). On remand, he was re-sentenced to a four-year prison term with three years of parole ineligibility. Defendant then filed the PCR petition giving rise to this appeal.
In his PCR, defendant raised the following contentions:
POINT I: PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO ARGUE THAT NOT ENOUGH OF THE SUSPECTED COCAINE WAS ANALYZED AND SHOWN TO BE REAL TO SUPPORT A CHARGE OF POSSESSION WITH THE INTENT TO DISTRIBUTE.
POINT II: PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL DID NOT OBJECT TO THE INCOMPETENT TESTIMONY OF OFFICER HARRIS ABOUT THE SIGNIFICANCE OF THE MONEY SEIZED AND DID NOT ARGUE THAT THE POLICE MADE NO EFFORT TO INVESTIGATE THE SOURCE OF THE FUNDS.
POINT III: DEFENSE COUNSEL'S STIPULATION, WITHOUT PETITIONER'S CONSENT, THAT "PROHIBITED CONDUCT" TOOK PLACE IN A SCHOOL ZONE WAS ERROR BECAUSE IT WAS TANTAMOUNT TO AN ADMISSION OF GUILT; PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, TO CONFRONT WITNESSES AGAINST HIM, AND TO DUE PROCESS OF LAW.
POINT IV: DEFENSE COUNSEL ERRED WHEN HE FAILED TO INVESTIGATE THE CASE AND PRESENT EXCULPATORY EVIDENCE AT TRIAL; PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL, COMPULSORY PROCESS, DUE PROCESS OF LAW, AND A FAIR TRIAL.
POINT V: DEFENSE COUNSEL'S ERRORS WERE CUMULATIVE AND MATERIALLY AFFECTED THE OUTCOME OF PETITIONER'S CASE; THE CONVICTION AND SENTENCE SHOULD BE VACATED, OR AN EVIDENTIARY HEARING HELD TO RESOLVE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT VI: COMPLIANCE WITH STATE V. WEBSTER.
In a pro se filing, he also contended that the police officers' grand jury testimony was inconsistent with their trial testimony.
On January 19, 2007, Judge Deborah J. Venezia, who had also been the trial judge, issued a thorough oral opinion rejecting all of defendant's PCR contentions. Relying on State v. Roberson, 246 N.J. Super. 597 (App. Div. 1991), the judge concluded that trial counsel was not ineffective for stipulating to the results of the laboratory testing of the drugs, or for failing to claim that the State had only tested a random sampling of the seized drugs. If raised at trial, those arguments would have been rejected by the trial court as without merit.
Judge Venezia also found that counsel was not ineffective in stipulating that the "prohibited conduct" took place within 1000 feet of a school. She reasoned that use of the term "prohibited conduct" was not a direction to the jury that defendant was guilty of prohibited conduct, but was only a part of the definition of a school zone offense, and the jury would have understood this. She likewise rejected defendant's contention that trial counsel should have investigated the source of the funds seized from defendant or should have interviewed additional witnesses. Citing State v. Cummings, 321 N.J Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), the judge noted that defendant had not submitted any certifications as to what facts the witnesses would have testified; she concluded that "mere assertions" were insufficient to justify an evidentiary hearing on the PCR petition. She further concluded that trial counsel had cross-examined the police officer who testified about the significance of the money seized from defendant.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Defendant Established A Prima Facie Claim Of Ineffective Assistance Of Counsel Where Trial Counsel Stipulated Facts That Prejudiced Defendant And Deprive Him Of The Right To A Fair Trial.
B. Defendant Was Denied Effective Assistance Of Counsel Where Defense Counsel Failed To Adequately Investigate The Matter.
We conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons stated in Judge Venezia's opinion. We add the following comments.
On this appeal, defendant once again contends that his trial counsel should not have stipulated to the school zone. This argument is without merit. Defendant does not dispute that the scene of his arrest was within 1000 feet of a school. We agree with Judge Venezia that reference to "the prohibited conduct" was simply a description of the school zone allegation.
Defendant further argues that defense counsel should have found and interviewed three witnesses to his arrest. However, defendant does not suggest what if any helpful testimony these witnesses might have provided. See Cummings, supra, 321 N.J. Super. at 171. Because defendant did not present a prima facie case of ineffective assistance, he was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-64 (1992); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 58-61 (1987).
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