On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 99-04-0638, 99-09-1642 and 01-05-0766.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 2010
Before Judges Wefing and Baxter.
Defendant Derrick Bethea*fn1 appeals from a May 14, 2008 order denying his petition for post-conviction relief (PCR). In three separate trials, defendant was convicted of swindling and cheating at casino gaming, a fourth-degree crime, N.J.S.A. 5:12-113(a). His convictions stemmed from incidents that occurred at the Showboat Casino, Indictment no. 99-09-1642; Bally's Casino, Indictment no. 01-05-0766; and Trump Plaza Casino, Indictment no. 99-04-0638. We affirmed defendant's convictions on Indictment nos. 99-09-1642 and 01-05-0766. State v. Bethea, No. A-0945-01 (App. Div. May 28, 2003). We also affirmed his conviction on the remaining indictment. State v. Bethea, No. A-3137-00 (App. Div. July 2, 2002). The Supreme Court denied defendant's petition for certification on A-0945-01. State v. Bethea, 178 N.J. 30 (2003). Defendant apparently did not seek certification as to A-3137-00.
In his PCR petition, defendant asserted that trial counsel rendered ineffective assistance by failing to: communicate with him to prepare for the trial; file a probable cause motion; advise him that he had the right to represent himself and to conduct his own examination of the State's witnesses; challenge "the identity of the hands in this case, which the State alleged belonged to [him]"; argue that defendant did not "past post" the wagers and therefore committed no crime; file motions to dismiss the indictment based upon both unreasonable delay in bringing the case to trial and insufficiency of the evidence presented to the grand jury; object to hearsay and prosecutorial misconduct; move for recusal of the judge; argue to the jury that his behavior constituted "normal harmless gambling"; correctly argue the defense of selective prosecution; and move for additional pretrial discovery, which would have included "the order of the casino management" requiring dealers to remove the rules of gaming "from the table." He also asserted that the State's witnesses committed perjury, the videotape made at the casino had been altered, and appellate counsel rendered ineffective assistance.
In a written decision issued on April 24, 2008, Judge Garofolo rejected each of these claims. Addressing defendant's selective prosecution claim, the judge observed that defendant had wrongly focused on whether or not the casino had improperly selected him for prosecution, rather than, as the law required, demonstrating that the State had unfairly singled him out. As to the claim that trial counsel had failed to communicate with defendant, the judge observed that defendant had not pointed to specific instances in the record where counsel's failure to file motions resulted in demonstrable prejudice. The judge likewise rejected defendant's claims that trial counsel failed to object to hearsay evidence, finding that defendant had mischaracterized the record, because counsel did object to hearsay. As to the issue of trial counsel's failure to object to prosecutorial misconduct, the judge observed that because there was nothing improper about the prosecutor's argument in summation that it was the jury's responsibility to decide the issue of guilt or innocence, such an objection could not have succeeded even if an objection had been made.
Turning to defendant's claim that appellate counsel was ineffective because he failed to raise all of the appropriate issues, the judge noted that in A-0945-01, appellate counsel had raised nine issues on appeal, but we had deemed all nine meritless. As to A-3137-00, Judge Garofolo noted that because defendant had not provided any specific examples of appellate counsel's inadequacies, such claims were barred by State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), which requires a defendant to present more than "bald assertions."
Addressing defendant's claim that no crime was committed, the judge observed that an attempt to place wagers after the dealer had stopped the betting constituted a violation of N.J.S.A. 5:12-113(a) because such a practice constituted a "trick or sleight of hand." See N.J.S.A. 5:12-113(a).
As to defendant's claim that the videotape of the casino floor and roulette table had been altered, the judge rejected this claim because it was unsupported by any evidence to support an attack on the authenticity of the videotape. The judge also rejected defendant's contention that the testimony of Anna Dellagata was perjured, reasoning that defendant had "twist[ed]" Dellagata's testimony to make it appear that "she altered her story."
The judge also considered defendant's claim that the flight charge given to the jury on two of three indictments denied him a fair trial. The judge observed that in each trial, a witness had testified that defendant ran away when casino security approached him to question him about his bets, and therefore the flight charge was proper. The judge also noted that flight had not been charged in the jury trial on Indictment no. 99-09-1642.
Last, the judge rejected defendant's claim of cumulative error, because counsel did not commit errors amounting to ineffective assistance of counsel or, if any such errors were made, those errors did not prejudice defendant or undermine the fairness of the trial.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE ...