May 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-03-0501 and 03-06-1048.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2010
Before Judges Rodríguez and Yannotti.
Defendant, Gary Williams, appeals from the denial of his petition for post-conviction relief (PCR), challenging his conviction and sentence with respect to two distinct criminal episodes. We affirm.
Indictment No. ATL-03-03-0501
In August 2004, following a jury trial, defendant was convicted of third degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(3). The judge imposed a four-year term. On direct appeal, we affirmed defendant's conviction and sentence. State v. Gary Williams, No. A-784-04T4 (App. Div. July 24, 2006), certif. denied, 188 N.J. 492 (2006).
The facts are fully set forth in our earlier decision. The proofs showed that Atlantic City Police Detective Alexis Smith was working on a narcotics investigation in an undercover capacity. On January 23, 2003, she arranged to pick up Danielle Foster. Smith asked Foster to purchase cocaine for her. Foster agreed to do so but demanded $100 for the drugs, and $30 for herself.
Foster and Smith drove to the Flamingo Motel. There, Foster exited the car in order to meet her source. After a few minutes, Foster returned and said that Jakeem Bright did not have any more cocaine at that location. Smith and Foster drove to a different location and parked. Foster then got out of the car. When she returned to the car, she handed over to Smith a plastic bag containing a white rocky substance that tests proved to be cocaine. Foster was not placed under arrest at that time in order not to jeopardize Smith's undercover status.
Other units had placed the Flamingo Motel under surveillance. Detective Tom Gurcione videotaped events at the motel that morning. He testified that he saw Foster arrive and enter the motel. After a short time, she left with Jakeem Bright and a woman later identified as Nakia Shanks. Bright and Shanks got into a dark-colored Ford Explorer and drove away.
Detective Ronald DiGiovanni, who was in charge of this investigation, directed the police units to follow the Explorer. They did so and observed Bright meet with defendant, who was driving a black Lincoln. Bright and Shanks then drove to where Foster and Smith were waiting. Foster received the cocaine.
She then delivered the cocaine to Smith. The surveillance units attempted to follow defendant, but he took off at a high rate of speed.
Shanks and Bright testified at defendant's trial. She and Bright had been indicted along with defendant. Both entered negotiated guilty pleas. By the time of defendant's trial, Bright had served his sentence. Shanks entered a negotiated plea of guilty the day before defendant's trial.
Shanks testified for the State. She had driven Bright that morning to meet with defendant to buy the cocaine that was sold to Foster.
Bright testified for the defense. He agreed that he had met with defendant that morning. He testified, however, that they met because defendant had earlier asked him to borrow $200 for supplies for his daughter's birthday party. Bright said he was only able to give defendant $100 because he needed the balance to replenish his stock. Defendant corroborated this testimony.
Indictment No. ATL-03-06-1048
In June 2006, defendant pleaded guilty to unrelated charges of first degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1); two counts of second degree eluding a police officer, N.J.S.A. 2C:29-2b; and third degree possession of a handgun, N.J.S.A. 2C:39-5b. The State agreed to dismiss related charges and recommend concurrent custodial terms not to exceed twelve years with a seventy-month parole disqualifier to run consecutive to the sentence on conspiracy. The judge imposed the recommended sentence. At the plea hearing, defendant admitted that on February 23, 2003, he possessed more than five ounces of cocaine with the intent to distribute it. On March 12, 2003, defendant was operating a vehicle, which the police attempted to stop. Defendant was in possession of a gun. Upon realizing that police officers were trying to stop him, he tried to get away from them by driving his vehicle at a high rate of speed in a reckless manner. We affirmed the convictions on direct appeal. State v. Gary Williams, No. A-2180-04T4 (App. Div. June 19, 2006), certif. denied, 190 N.J. 392 (2007).
In February 2007, defendant filed pro se a first PCR petition. Counsel was assigned to represent defendant on the petition and a supplemental brief was filed, raising claims of ineffective assistance of trial counsel. Specifically, defendant alleged that trial counsel failed to file a motion that the verdict was against the weight of the evidence. In addition, defendant argued that his petition was not barred by operation of Rules 3:22-4, 3:22-5 or 3:22-12. Defendant also contended that the court should have directed that the base term of the conspiracy conviction be reduced from sixteen years to the presumptive fifteen years with a five-year parole ineligibility term. The judge denied the petition, finding that it was procedurally barred.
On appeal, defendant contends:
THE COURT ERRED IN DENYING [PCR] WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT TRIAL SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST.
(A) TRIAL COUNSEL'S FAILURE TO GIVE AN OPENING STATEMENT; TRIAL COUNSEL'S FAILURE TO ARGUE EVIDENTIARY ISSUES AT SIDEBAR; TRIAL COUNSEL'S FAILURE TO OBJECT TO IMPROPER WITNESS BOLSTERING BY THE PROSECUTOR; TRIAL COUNSEL'S FAILURE TO OBJECT TO TESTIMONY THAT THE DEFENDANT WAS IN JAIL; TRIAL COUNSEL'S FAILURE TO SECURE APPROPRIATE JURY INSTRUCTIONS; TRIAL COUNSEL'S FAILURE TO MAKE APPROPRIATE TRIAL AND POST-VERDICT MOTIONS; AND TRIAL COUNSEL'S FAILURE TO ARGUE MITIGATING FACTORS AT SENTENCING; RESULTED IN A TRIAL THAT DID NOT PRODUCE A JUST RESULT.
(B) TRIAL COUNSEL'S DEFICIENT PERFORMANCE PREJUDICED THE DEFENDANT.
(C) UNDER R. 3:22-2 CRITERIA, THE DEFENDANT WAS ENTITLED TO A FULL EVIDENTIARY HEARING IN [PCR].
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PRO SE BRIEF IN SUPPORT OF [PCR] AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF [PCR].
We agree with the judge that this PCR petition is barred by operation of Rules 3:22-4, 3:22-5 and 3:22-12. Moreover, defendant has not established either prong of the Strickland v. Washington*fn1 standard for determining ineffective assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz.*fn2 We disagree that the judge should have granted an evidentiary hearing. 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 ineffective assistance of counsel is made. State v. Preciose, 129 N.J. 451, 462-64 (1992).
Here, there has been no such showing. Moreover, the alleged disputed performance by counsel can be scrutinized based on the trial record.