July 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ASHLEY A. GEORGES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-04-1057.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2010
Before Judges Skillman and Fuentes.
Defendant Ashley A. Georges appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
On December 12, 2001, a jury convicted defendant of purposeful or knowing murder, N.J.S.A. 2:11-3a(1),(2), second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and third degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b. The court sentenced defendant on February 8, 2002, to an aggregate term of life imprisonment with a thirty-year period of parole ineligibility. We affirmed defendant's conviction and sentence on direct appeal. State v. Georges, No. A-3960-01 (App. Div. Sept. 29, 2003), certif. denied, 180 N.J. 453 (2004).
On July 15, 2005, defendant filed this PCR petition pro se, arguing, inter alia, that he was denied the effective assistance of trial and appellate counsel. The court thereafter assigned counsel to represent defendant in the prosecution of the petition. PCR counsel filed a supplemental brief in support of defendant's pro se petition. After hearing the argument of counsel, the PCR judge found that defendant failed to establish a prima facie case of ineffective assistance of counsel, and denied the petition without a hearing.
Defendant now appeals raising the following arguments:
THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, BECAUSE THE DEFENDANT'S TRIAL COUNSEL COMMITTED SERIOUS MISTAKES AND THESE MISTAKES DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
A. THE DEFENDANT'S TRIAL COUNSEL FAILED TO MOTION [sic] TO SUPPRESS EVIDENCE, GAUZE BANDAGE AND DNA RESULTS, CONNECTED WITH THE ILLEGAL SIEZURE [sic] OF THE CAR ALLEGEDLY USED DURING THE OFFENSE.
B. THE DEFENDANT'S TRIAL COUNSEL FAILED TO OBJECT TO A MISLEADING AND FLAWED MURDER INSTRUCTION.
C. THE DEFENDANT'S TRIAL COUNSEL FAILED TO OBJECT TO A MISLEADING AND FLAWED JURY CHARGE CONCERNING THE IDENTIFICATION OF THE DEFENDANT BY THE STATE'S WITNESS, RIDDICK.
D. THE DEFENDANT'S TRIAL COUNSEL FAILED TO OBJECT WHEN THE TRIAL JUDGE MISHANDLED A JURY REQUEST FOR A TESTIMONY READBACK.
E. THE DEFENDANT'S TRIAL COUNSEL FAILED TO REQUEST A LIMITING INSTRUCTION ABOUT TWO ITEMS OF EVIDENCE-TESTIMONY THE VICTIM WAS A DRUG DEALER AND TESTIMONY THE DEFENDANT WAS SHOT IN THE FACE JUST PRIOR TO THE VICTIM'S MURDER.
F. THE DEFENDANT'S TRIAL COUNSEL FAILED TO INVESTIGATE AND PRESENT A VIABLE ALIBI DEFENSE.
We reject these arguments substantially for the reasons expressed by Judge Vichness. We add only the following comments.
We review a claim of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant must first demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
As part of his claim of ineffective assistance of trial counsel, defendant argues that his attorney failed to pursue an alibi defense. In support of this claim, defendant submitted the affidavit of a woman named Ivory Downey, who states that "[o]n December 4, 1999, the day of the shooting, Ashley Georges was at home with me. . . ." Downey further states that she had given birth to defendant's child two weeks before the shooting and that defendant had been with her on the day of the shooting "because he had just been released from the hospital."
On its face, this affidavit only accounts for defendant's whereabouts on "the day of the shooting" generally. The affiant does not state with specificity that defendant was with her for the entire day. More importantly, neither Downey nor defendant asserted under oath that defense counsel was aware of Downey's availability as an alibi witness. Although, as part of his argument before us, defendant's appellate counsel alleges that defendant told his trial counsel of the existence of this alibi witness, there is no competent proof in the record to support his assertion. Defendant has thus not satisfied the first prong of Strickland/Fritz; that is, that his defense counsel's performance was deficient.
The rest of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Vichness in his oral opinion delivered from the bench on August 28, 2007.
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