May 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE GAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-10-1836.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2010
Before Judges Rodríguez and Chambers.
Defendant, Maurice Gay, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In November 2000, following a jury trial, defendant was convicted of third degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Judge Joseph S. Conte granted the State's motion for an extended term and imposed an eight-year term with a thirty-two month parole disqualifier. On direct appeal, we affirmed defendant's conviction and sentence. State v. Gay, No. A-2310-00T4 (App. Div. Jan. 10, 2003), certif. denied, 176 N.J. 74 (2003).
The charge stems from a fight while defendant was an inmate at the Bergen County Jail on July 19, 1999. At approximately noon, Bergen County Sheriff's Officer Michael Campanile went to "Pod D" and noticed that defendant was taking a shower. Soon thereafter, another officer received a telephone call to escort inmate Alex Irizarry to the law library. Campanile checked both defendant's and Irizarry's classification files to ensure that they were not enemies because two inmates are not permitted out of their cells at the same time if they are enemies. A review of the relevant files revealed that defendant and Irizarry were not enemies.
Per procedure, Campanile went to Irizarry's cell and handcuffed his hands behind his back. Irizarry had a cast on his right hand which restricted his movements even further. Campanile began to walk Irizarry down the hall. Irizarry was still handcuffed at that point. At trial, Irizarry testified that defendant came "out of the clear blue" and "jump[ed] out of the shower area and stab[bed] me with pencils . . . ." According to Irizarry, defendant broke a lead pencil point off while sticking the pencil in his forehead.
Campanile was able to bring defendant down to the floor and handcuff him. He saw that Irizarry was bleeding from a small hole in his forehead. Campanile found two pencils on the floor. At the infirmary, the nurse was able to remove a three-quarter-inch piece of lead from Irizarry's forehead.
Defendant testified in his own defense. He admitted that he had two prior felony convictions in Maryland and three felony convictions in New Jersey. Defendant claimed that Irizarry had been rude to him when they shared a cell for six weeks. On the morning of the attack, defendant requested a pencil and to go to the law library. An officer placed the pencil outside the shower area. When defendant came out of the shower, he saw Irizarry coming towards him. Defendant testified that Irizarry was "swinging his left hand at me." Defendant blocked the swing and pushed Irizarry back before being subdued by the officer. Defendant denied hitting Irizarry in the head with his fist, however, he admitted that it was "possible that [Irizarry] got grazed with a pencil."
In August 2006, defendant filed pro se his first PCR petition. Counsel was assigned to represent defendant on the petition and filed a brief, raising a claim of ineffective assistance of trial and appellate counsel. Defendant alleged that trial counsel was ineffective because he failed to object that defendant was shackled and wearing prison garb, and a waist chain during trial.*fn1 Defendant also alleges that trial counsel should have objected to the fact that Irizarry was wearing an orange prison jumpsuit and was waist-chained and shackled. Lastly, defendant contends that trial counsel should have objected because the judge prohibited defendant from having a writing utensil during trial.
As for appellate counsel, defendant complains that he failed to raise trial counsel's deficiencies on appeal. Judge Donald R. Venezia denied the petition and defendant's request for an evidentiary hearing. The PCR judge viewed a videotape of the trial and concluded that defendant and Irizarry were not in shackles in front of the jury. Moreover, given the fact that defendant was being tried for stabbing someone in the forehead with a pencil, the trial judge was well within his discretion to bar defendant from using a writing utensil in the courtroom.
This did not prevent defendant from communicating with his attorney as defendant argued, because the PCR judge noted that the videotape revealed that defendant spoke with his attorney frequently during the trial.
On appeal, defendant contends:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR].
1. Defendant's Petition Is Not Barred.
2. Defendant Established At Least A Prima Facie Case Of Ineffective Assistance Of Counsel That Entitled Him To An Evidentiary Hearing.
We agree with Judge Venezia that this petition is barred by operation of Rules 3:22-12 and 3:22-4 (Bar on Grounds Not Raised in Prior Proceedings). The five-year limitation period set by Rule 3:22-12 is not tolled by an appeal. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996). Moreover, defendant has not met either prong of Strickland v. Washington*fn2 standard for determining ineffective assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz.*fn3
As for the argument that the judge should have granted an evidentiary hearing, we disagree. Defendant has failed to meet the threshold for an evidentiary hearing. When issues of defective performance of counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is to hold a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992).
Here, there has been no such showing. Moreover, the alleged disputed performance by counsel can be scrutinized based on the trial record. We note that the offense of which defendant was convicted occurred in jail. It was inherent in the evidence that defendant and Irizarry were inmates at the Bergen County Jail. Therefore, the fact that they were wearing prison garb would not come as a surprise to the jury. Further, courtroom security required that both men be restrained during trial. This allegation is raised as an ineffective assistance of counsel claim. However, counsel had no control over this issue, which is addressed to the sound discretion of the trial judge. State v. Kuchera, 198 N.J. 482, 500-502 (2009).