March 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN WILSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2010
Before Judges Gilroy and Simonelli.
Defendant John Wilson appeals from the denial of his petition for post conviction relief (PCR) grounded on ineffective assistance of trial counsel. On appeal, defendant raises the following contentions:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST OR AN EVIDENTIARY HEARING AS DEFENSE . . . COUNSEL'S FAILURE TO HAVE THE HANDGUN RECOVERED FROM DEFENDANT'S APARTMENT TESTED FOR FINGERPRINTS AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AS DEFENSE COUNSEL'S FAILURE TO [SUBPOENA] JAMES M. THOMPSON AS A WITNESS DURING TRIAL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
We reject these contentions and affirm.
Officer Anthony Goodman of the Jersey City Police Department testified at trial that on February 9, 2005, he and other members of the Hudson County Task Force executed a search warrant at an apartment in Jersey City. Upon arriving there, the police patted down and released two males, who were in the hallway outside the apartment. The door to the apartment opened as the officers were about to forcibly enter it. The officers then rushed into the apartment, secured an individual later identified as defendant, searched the apartment, and recovered a handgun from under a couch, which was loaded with six rounds. The police recovered a seventh round on the floor behind the couch. The police did check the gun for fingerprints.
Detective Robert Till testified that he searched the bedroom and from a shelf behind the bed, he recovered a clear plastic bag containing twenty-three .22 caliber bullets and one larger caliber bullet.
Detective Megan Connell testified that she also searched the apartment and by the television, she recovered a Verizon bill, a receipt from Rockaway Bedding, and a letter dated January 21, 2005, from Audubon Park Apartments, all addressed to defendant at the apartment's address. The detective also recovered $1,007, consisting of ten $100 bills and seven $1 bills.
Detective Karen Warden-Wood testified that upon defendant's arrival at police headquarters, she read him his Miranda*fn1 rights from a form. Defendant stated that he understood his rights, and he signed the waiver form. Lieutenant Robert DeGenova testified that he spoke to defendant after defendant received his Miranda rights. Defendant told the officer that he had obtained the gun recovered from his apartment from his grandmother for protection.
A grand jury indicted defendant for third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count one); and third-degree certain persons prohibited from having weapons, N.J.S.A. 2C:39-7b (count two). At trial, the parties stipulated that the gun was operable and that defendant had a prior conviction that subjected him to count two. During trial, defense counsel received the following written statement from James A. Thompson:
To whom it may concern:
I James M. Thompson was in the apartment with John Wilson and Nathaniel [Smith] when police came rushing in. This happened on Feb. 9, 2005. They put me and Nathaniel to the floor and proceeded by taking my I.D. and running it for warrants. When they seen that they couldn't find anything on me and Nathaniel They told us to get out of here so I picked up my thing and asked why is he handcuffed what is he being locked up for. They replied "Get out of here" several times to me and Nathaniel. I never seen a gun or bullets, they never showed the gun or bullets. They never told me what they were locking John Wilson up for or anything they kept telling us to get out of here.
A jury convicted defendant of the offense charged in count two. The trial judge sentenced him to an eight-year term of imprisonment with a five-year period of parole ineligibility.
Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. Wilson, 192 N.J. 272 (2007). Defendant then filed a pro se PCR petition, raising the same contentions he raises on appeal. In a written opinion issued in connection with an order entered November 19, 2008, Judge Callahan denied the petition without a hearing. The judge concluded that defendant failed to establish that trial counsel was ineffective in failing to have the handgun fingerprinted and to call Thompson as a trial witness.
Based upon our review of the record, in light of the applicable law and arguments presented, we affirm substantially for the reasons expressed by Judge Callahan in his well-reasoned written opinion.