On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-10-1241.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2010
Before Judges Axelrad and Fisher.
Defendant George Jacobs, Jr. appeals from the April 23, 2008 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant alleges ineffective assistance of trial and appellate counsel. We affirm.
Defendant was charged in an eight count indictment with two others relating to a car theft. Defendant was tried with one of the co-defendants and was convicted of first-degree carjacking, N.J.S.A. 2C:15-2a(l) and N.J.S.A. 2C:2-6 (count one). He subsequently pled guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count seven); and fourth-degree possession of a defaced weapon, N.J.S.A. 2C:39-3d (count eight). In September 2003, defendant was sentenced to a twenty-five year aggregate custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant filed a direct appeal, arguing the court erred in allowing the State to introduce evidence about his alleged gang membership, the prosecutor committed misconduct and error in talking to a juror during summation, and the verdict was against the weight of the evidence. We affirmed the conviction but remanded for correction of the judgment of conviction. State v. Jacobs, No. A-1551-03T2 (App. Div. Nov. 3, 2004). The Supreme Court denied defendant's petition for certification on September 7, 2005. State v. Jacobs, 185 N.J. 263 (2005). Defendant's subsequent petitions before the federal courts, including the United States Supreme Court, were all denied.
This PCR petition ensued and was denied by Judge Randolph Subryan in a written opinion of April 23, 2008, following oral argument for which defendant was present. In a pro se submission and that of PCR counsel, defendant raised a variety of claims of ineffective assistance of trial and appellate counsel, but primarily focused on their failure to either challenge or raise a purported inadequate accomplice liability jury instruction. Defendant contended that the trial court's instructions did not explain to the jury the possibility that an accomplice may be found guilty of a lesser-included offense regardless of whether the principal was found guilty of the more serious offense pursuant to State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. l993), and that the jury should have been given the facts which would have led them to the conclusion that defendant was guilty of a lesser-included offense but not the carjacking offense with which he was charged.
In a comprehensive written opinion, Judge Subryan addressed and rejected defendant's arguments, explaining in particular why the model jury charge that was given was appropriate under the facts of the case and that the jury was instructed it could consider lesser-included offenses of unlawful taking of a means of conveyance and simple assault against the defendant. The court further found trial counsel was not ineffective in his conduct of the case and defendant articulated no basis upon which the court should second-guess trial counsel's strategy. Judge Subryan also found appellate counsel was not ineffective in failing to raise an issue in which counsel obviously saw no merit.
On appeal, defendant concedes the trial court did instruct the jury that it had the option of considering the unlawful taking of a conveyance, a lesser-included offense of carjacking. Defendant argues, however, that in giving the accomplice liability charge, the court did not tailor its instruction to the facts of the case. According to defendant, the failure to object to or raise on appeal the "vague" charge satisfied both prongs of the Strickland/Fritz test, see infra, because it demonstrated deficient performance and "undermined confidence" in the carjacking verdict. Accordingly, defendant contends his conviction must be reversed or, at a minimum, he must be afforded an evidentiary hearing pursuant to State v. Preciose, 129 N.J. 451 (1992).
Based on our review of the record and applicable law, we find defendant's arguments to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated 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 State v. Fritz, 105 N.J. 42 (1987). This two-pronged test requires defendant to establish: (1) that 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) that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, supra, 466 U.S. at 688-89, 694, 104 S.Ct. at 2064-65, 2068, 80 L.Ed. 2d at 694-95, 698. We are not persuaded defendant established either prong of ineffective assistance of counsel. The trial court provided the jury with an adequate factual scenario in view of the simplicity of the case and appropriately charged on the law. Moreover, defendant failed to articulate with any specificity how he was prejudiced by the instruction as given.
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