February 17, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ZIYAD ABUGHAIDA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-07-1653.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010
Before Judges Graves and Messano.
Defendant Ziyad Abughaida appeals from an order dated December 8, 2008, denying his petition for post-conviction relief (PCR). We affirm.
A Bergen County grand jury charged defendant with first-degree robbery in violation of N.J.S.A. 2C:15-1. The indictment alleged that while defendant was in the course of committing a theft from Linda Dabak (Dabak) on August 1, 2001, he purposely inflicted or attempted to inflict serious bodily injury upon Dabak. Following a trial, a jury found that defendant knowingly inflicted bodily injury or used force upon Dabak while committing a theft, and defendant was convicted of second-degree robbery, contrary to N.J.S.A. 2C:15-1(b). On June 4, 2004, defendant was sentenced to serve a nine-year term of imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and, in an unpublished opinion, we affirmed defendant's conviction but remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Abughaida, No. A-6174-03 (App. Div. Mar. 8, 2006). The Supreme Court denied defendant's petition for certification. 188 N.J. 220 (2006). At the resentencing hearing on April 10, 2006, the trial court reimposed the same sentence.
We need not repeat all of the facts supporting defendant's conviction because they are set forth in our unpublished opinion. In that opinion, we noted that Dabak drove to the Bergen Commercial Bank in Wood Ridge shortly after 11:00 a.m. on August 1, 2001, with a cardboard box containing cash and checks that she intended to deposit. While walking to the bank, Dabak observed a young man, later identified as defendant, "leaning against the bank building." After Dabak walked past defendant, he started to follow her and attempted to knock the box from her arm. The two struggled for five to ten seconds. During the struggle, defendant hit Dabak on the bridge of her nose with a closed fist before he ran away with the box containing the money.
Dabak sustained a fractured nose and a facial laceration resulting in permanent scars. At trial, Dabak's treating physician, Dr. William Boss, Jr., confirmed that Dabak's nasal fracture required reconstructive surgery and that her scars are "permanent and irreversible."
Anthony Sinatra was in the vicinity of the bank when he heard a scream, and he saw defendant run from the scene to a waiting car that sped off. Sinatra was able to describe the vehicle and he told the police that the license plate of the car contained the letters LCR. Another witness, Mark Petrucelli, observed defendant for ten to fifteen seconds while he was being chased by "a police officer and . . . a crowd of people." According to Petrucelli, defendant was only about "three feet away" when he passed in front of Petrucelli's car.
Prior to defendant's arrest, Dabak and Petrucelli identified defendant's photograph from a photo array. At trial, Dabak identified defendant as the person who forcibly took the cardboard box containing the money from her, and Petrucelli identified defendant as the same person who was being chased by the police at about the time of the robbery. In addition, there was substantial evidence linking defendant to the getaway car and other circumstantial evidence supporting defendant's guilt.
In his pro se petition for PCR, defendant argued that the State failed to present "sufficient reliable evidence to establish beyond a reasonable doubt that [he] is the person who committed the alleged offense." In addition, he claimed that his trial attorney was ineffective for failing to challenge the out-of-court identification procedures and for failing to obtain a medical expert "to authenticate" the testimony of Dr. Boss.
During oral argument on December 8, 2008, defendant's PCR attorney argued that identification was a critical issue in the case and that trial counsel should have filed a pretrial motion for a Wade*fn1 hearing. In response, the State noted that defendant's attorney had requested a Wade hearing, but the application was denied by the court based on State v. Ortiz, 203 N.J. Super. 518 (App. Div.), certif. denied, 102 N.J. 335 (1985). At that point, PCR counsel stated: "Well, judge, the application was made, [but] we felt it wasn't made strong enough."
Following oral argument, the PCR judge, who also presided over defendant's criminal trial, concluded there was no need for an evidentiary hearing because defendant had failed to present a prima facie claim in support of his petition. The court's decision was memorialized in an order dated December 8, 2008.
On appeal from the denial of his petition, defendant presents the following arguments:
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE FAILED TO BE ADEQUATELY PREPARED TO PROFFER ANY PRETRIAL EVIDENCE THAT THE OUT-OF-COURT POLICE PROCEDURES WERE IMPERMISSIBLY SUGGESTIVE.
THE FAILURE OF THE DEFENDANT'S APPELLATE COUNSEL TO ADDRESS ON THE DEFENDANT'S DIRECT APPEAL THE SUGGESTIVENESS OF THE OUT-OF-COURT POLICE IDENTIFICATION PROCEDURE AMOUNTED TO CONSTITUTIONALLY INEFFECTIVE REPRESENTATION.
THE DEFENDANT'S TRIAL ATTORNEY ERRED BY FAILING TO CONFRONT EITHER AT TRIAL OR AT SENTENCING THE STATE'S MEDICAL EXPERT TESTIMONY AS TO THE VICTIM'S INJURIES.
THE PROCEDURAL BAR SHOULD NOT BE ENFORCED WHERE PRECLUSION WOULD RESULT IN A FUNDAMENTAL INJUSTICE TO THE CRIMINAL JUSTICE SYSTEM.
Based on our review of the records, the briefs, and applicable law, we are convinced that these arguments are clearly without merit. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
To prevail on a claim of ineffective assistance of counsel, defendant must satisfy the Strickland/Fritz test.*fn2 Under this two-part test, defendant must establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
To establish a prima facie claim in support of PCR, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). It is not enough to simply allege that some injustice may have occurred. Rather, defendant must allege and articulate specific facts, "which, if believed, would provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
Here, defendant offered nothing more than his conclusory allegations that trial counsel and appellate counsel were deficient, and the PCR judge determined that defendant failed to meet both prongs of the Strickland/Fritz test. We have concluded from our review of the record that the court's findings are supported by sufficient credible evidence and that the matter was correctly decided. Accordingly, the order denying defendant's PCR petition is affirmed substantially for the reasons stated by Judge Donald R. Venezia on December 8, 2008.