March 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALTARIQ WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 02-04-0128.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Messano and LeWinn.
Defendant appeals from the June 12, 2008 order of the trial court denying his petition for post-conviction relief (PCR). We affirm.
Tried to a jury in December 2002, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree hindering apprehension, N.J.S.A. 2C:29-3(b); and two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6). He was sentenced to an aggregate term of seven years in prison subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).
Defendant appealed, and on March 8, 2004, we affirmed. State v. Williams, No. A-4950-02 (App. Div. March 8, 2004). The Supreme Court denied defendant's petition for certification. State v. Williams, 180 N.J. 455 (2004).
On January 5, 2007, defendant filed a motion for reconsideration of sentence; in that motion, however, he raised claims of trial error related to the introduction into evidence of a videotape that had not been provided in discovery. The motion was converted to a PCR petition; counsel was assigned and defendant submitted a supplemental certification claiming that:
(1) trial counsel failed to meet with him to discuss "procedure" and "never presented to [him] a coherent defense plan so that [he] did not know what [counsel] was doing"; and (2) at trial, a "recorded statement [defendant] allegedly made was played for the jury[,]... [which] recording did not have a complete correct identity of [him]self as the defendant and should not have been played to the jury." Defendant asserted that these errors constituted a "Brady*fn1 violation."
On May 9, 2008, Judge John H. Pursel, the same judge who had presided over defendant's trial and sentence, heard argument on his PCR petition. On June 12, 2008, Judge Pursel entered an order denying defendant's petition and appended a statement of reasons. The judge briefly recounted the trial testimony, which had established that a police officer observed defendant enter and drive a motor vehicle, and then commit a moving violation which prompted the officer to activate his lights and siren. Defendant did not pull over; rather he drove at a high rate of speed through residential neighborhoods, traveling the wrong way on one-way streets and ultimately collided with an oncoming car. Defendant then exited the vehicle and fled on foot. While giving chase, a police officer observed defendant drop a plastic baggie, which was retrieved once he was apprehended. The contents were identified as marijuana; defendant was also discovered to have two vials of crack cocaine on his person.
The judge noted further:
At trial, the defense focused on the issue of identification, highlighting the fact that [the police officer] never positively identified [defendant] as actually driving the vehicle; he only confirmed [defendant's] identity after apprehending him pursuant to a foot chase.
Nor did the dashboard videotape provide a positive identification. Defense counsel did not object to the admission of the videotape during the trial. Counsel for [the] defense also argued that [defendant] exited from the rear of the vehicle, and only ran from the police because he had contraband in his possession.
Regarding defendant's ineffective assistance of counsel claim, the judge found "little or no evidence to suggest that trial counsel's performance was deficient." Rather, the judge noted that defense counsel "made the appropriate motion to dismiss at the end of the State's case, cross-examined all witnesses, aggressively pursued a theory of the case which would exculpate [defendant] from the most serious charges, and cast doubt on the State's witness's [sic] credibility during cross-examination and closing arguments."
The judge further noted that, "even if [defendant's] trial counsel had offered up a sub-standard performance, [defendant] likely would have been convicted nonetheless[,]" adding that
[t]he case was not a credibility battle. It was not a matter of whether the jury believed the [defendant's] story or the State's: there was no alternate version of the events offered. Of the few witnesses whose credibility could have been impeached, all were officers. Their testimony was similar, and supported by a videotape. The sole theory open to the defense was that [defendant] was not driving the stolen car on the night in question. Trial counsel made that theory very clear to the jury, and they simply chose not to believe it. The weight of the evidence was so in favor of the State that [d]efense counsel could not impeach the credibility of most of the State's witnesses.
Therefore, the judge denied defendant's petition for PCR without affording him a plenary hearing.
On appeal, defendant presents the following contention for our consideration:
THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10 Having reviewed this contention in light of the record and the applicable legal principles, we conclude it is without merit. R. 2:11-3(e)(2). We affirm substantially for reasons stated by Judge Pursel in the statement of reasons appended to his order of June 12, 2008.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
Here, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. Therefore, he was not entitled to a plenary hearing on his petition. See State v. Preciose, 129 N.J. 451, 462 (1992).