March 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER FOGEL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-08-2748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011 - Decided
Before Judges Wefing and Baxter.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant of carjacking, N.J.S.A. 2C:15-2; kidnapping, N.J.S.A. 2C:13-1b(1); and robbery, N.J.S.A. 2C:15-1. The trial court sentenced defendant to an aggregate term of twenty years in prison, subject to the parole ineligibility provisions of N.J.S.A. 2C:43-7.2 (No Early Release Act or NERA). Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Fogel, No. A-1281-05 (App. Div. Dec. 13, 2007).
In our opinion, we summarized in the following manner the factual background that led to the charges against defendant:
Defendant's convictions rested upon an incident that occurred on the evening of June 6, 2004. Deborah Freeman, then seven months pregnant, left her husband and children at home and drove to several nearby stores for a quick errand. Driving her Suburban, a large vehicle with three rows of seats, she stopped first at a CVS drug store and then drove to a nearby QuickChek. When she returned to the car from the QuickChek she started to drive to get gas when she heard a noise from the third row of seats. She thought it was her oldest boy, who would often try to play a trick upon her. Instead, she looked into the rear view mirror and saw a man climbing forward from the rear of the Suburban. He told her he had a gun and would not hurt her if she did as she was told. He instructed her to drive him to a location in East Orange and she complied. When they arrived, he asked for her money and she handed over eighty dollars. He also demanded her car keys and got out of the vehicle and went into a nearby house. Ms. Freeman did not know the area in which they were stopped; she testified there were a number of people around but it struck her as an area in which people dealt in narcotics, and she was afraid to get out of the car. The man then returned to the Suburban, gave her the keys, and told her to drive to a second location, where he again took the keys and left her briefly. This area she described as more secluded than the other. She still did not know where she was and was afraid to leave the vehicle. The man again returned to the car and told her to drive off. He gave her directions and eventually told her to stop at a certain point. He got out of the car and she saw him run across the Garden State Parkway, which at that point had eight lanes of traffic. She returned home and, crying hysterically, told her husband to call the police. She estimated that the entire ordeal lasted approximately forty-five minutes to an hour.
[slip op. at 2-3.]
Ms. Freeman provided a description of the intruder and the following day a policeman saw a man matching that description near the QuickChek; it turned out to be defendant. The police went to his home, and he agreed to accompany them to the police station. There, after being advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he confessed. Later, Ms. Freeman picked out defendant's picture from a photo array.
Defendant's statement was received in evidence at his trial after the trial court held a hearing to determine its admissibility. The trial court rejected defendant's claim that he was slapped and choked by the police before giving this statement.
In his petition for post-conviction relief defendant raised a variety of issues, the principal one being that his trial attorney provided ineffective assistance when he withdrew defendant's alibi defense. The trial court rejected this contention, as well as defendant's other arguments and this appeal followed.
Defendant raises the following arguments on appeal.
THE PCR COURT ERRED BY DENYING MR. FOGEL A HEARING ON HIS CLAIM THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO INVESTIGATE AND PRESENT MR. FOGEL'S ALIBI WITNESS.
THE CLAIMS IN MR. FOGEL'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).
The standards which govern our analysis of defendant's contentions that he was deprived of the effective assistance of counsel are well-known. To prevail on a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel). New Jersey has adopted this two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).
Prior to trial, defendant's attorney filed a notice of alibi in accordance with Rule 3:12-2. The notice stated that defendant was at 85 Irving Terrace with his father at approximately 10:45 p.m. on June 6, 2004. Before the State presented its case, defendant's attorney told the trial court that the defense was withdrawing the defense of alibi. To support his petition, that this represented ineffective assistance, defendant submitted to the trial court an unsigned certification (a signed copy has been presented to us on appeal) from defendant's father that defendant was with him the evening of his arrest and during most of that day. Defendant, of course, was not arrested until two days after the crime. He also submitted his own certification that he was at home with his father the evening of the crime.
Defendant's contention that the withdrawal of his alibi defense was without his consent is not supported by the trial record. When defense counsel informed the trial court that the defense of alibi was being withdrawn, the trial court carefully questioned both the attorney and defendant.
THE COURT: I'm advised the jury is all in[;] you have something you wish to place on the record?
[DEFENSE COUNSEL]: I did. The defense previously filed a Notice of Alibi. Two witnesses were listed as Charles Fogel and Francis Ginsberg. Mr. Fogel wishes me to withdraw that Notice of Alibi. He wishes for his father to be in the trial. His father is Charles Fogel. He would not be able to be present in the trial and a witness.
THE COURT: You seem to be saying two different things. I assume that he wishes to withdraw his alibi because he doesn't have one, not simply because he want[s] his father in the courtroom.
Obviously a defense of that nature would outweigh, since it would go to his ability to be available -- outweigh his father watching his trial.
[DEFENSE COUNSEL]: Yes, yes.
The reason we're formally withdrawing the Notice of Alibi, we had previously made known the intent not to use his father as a alibi witness and prevent that[;] however in an effort to permit his father to be in the courtroom we're formally withdrawing that Notice of Alibi because then it takes him out of the witness category. So I indicated we hadn't been using him as a witness for alibi purposes.
THE COURT: That was not something I was aware of.
[DEFENSE COUNSEL]: Sorry
THE COURT: And because we are about to start a trial[,] it's important that it be on the record that it is being withdrawn officially for the first time on this record. You may have told her, but I was not aware of that. But he simply is withdrawing his defense.
[DEFENSE COUNSEL]: Yes.
THE COURT: Now that we know that officially on the record[,] his father may stay in the courtroom.
[DEFENSE COUNSEL]: Yes.
THE COURT: I don't want it to be said at some time later that that was done without his knowledge or his permission.
[DEFENSE COUNSEL]: No. I can have Mr. Fogel very briefly indicate.
Mr. Fogel[,] we discussed this matter and this meets with your approval, this decision?
THE DEFENDANT: Yes.
THE COURT: You understand no alibi defense will be put forth on your behalf?
THE DEFENDANT: Yes
THE COURT: You've had enough time to talk to your attorney about that?
THE DEFENDANT: Yes.
THE COURT: Okay. Anything else?
[PROSECUTOR]: Nothing from the State, your Honor.
The colloquy demonstrates that the post-conviction relief court was entirely correct in rejecting defendant's argument that the failure to pursue the defense of alibi resulted in defendant having received ineffective assistance from his trial court. On this appeal, counsel has incorporated within his brief the remaining contentions defendant asserted in support of his petition. State v. Webster, 187 N.J. 254 (2006). These contentions are the following:
TRIAL COURT DID NOT SUFFICIENTLY MAKE FACTUAL DETERMINATIONS AT THE CONCLUSION OF THE MIRANDA HEARING WHICH WAS THE BASIS OF THE TRIAL COURT NOT TO SUPPRESS THE SIGNED CONFESSION.
POLICE FAILED TO SCRUPULOUSLY HONOR DEFENDANT[']S RIGHT TO REMAIN SILENT, AND THE TRIAL COURT ERRED IN ITS FAILURE TO SUPPRESS THE TYPED SIGNED STATEMENT BASED ON THIS FACT, AND FAILED TO RULE ON DEFENDANT'S CLAIM THAT HE INVOKED HIS RIGHT TO SILENCE.
TRIAL COURT ERRED IN FINDING THE SIGNED TYPED CONFESSION VOLUNTARY WHEN SAID CONFESSION WAS RENDERED TAINTED BY THE UNCONSTITUTIONAL VIOLATIONS OF THE POLICE.
TRIAL COURT ERRED WHEN MAKING ITS FACTUAL DETERMINATIONS WHEN THE TRIAL JUDGE ENGAGED IN THE ASSESSMENT OF THE CREDIBILITY OF THE CONFESSION.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY STATE CONSTITUTION ARTICLE I, PARAGRAPH 10
A.) ATTORNEY FAILING TO OBTAIN PHYSICAL INVESTIGATIONS THAT COULD HAVE EXONERATED HER CLIENT
B.) ATTORNEY FAILING TO PURSUE ALIBI DEFENSE AT TRIAL.
TRIAL COURT PURSUED AN UNJUST COURSE IN ITS RULING DURING THE WADE HEARING IN NOT SUPPRESSING THE OUT OF COURT IDENTIFICATION OF THE VICTIM, WHEN EVIDENCE SHOWED A PLAUSIBLE SHOWING OF UNCONSTITUTIONAL SUGGESTIVENESS.
Defendant's contentions with respect to the Miranda proceedings and the Wade hearing are procedurally barred because they could have been raised on direct appeal. R. 3:22-4. His argument with respect to an inadequate physical investigation relates to his contention that he had a pronounced limp from a recent accident and could not have fled across the Garden State Parkway as Ms. Freeman testified. Both Ms. Freeman and the arresting officers said that defendant did not have a limp. Even if we were to accept the proposition that this contention satisfies the first prong of the Strickland/Fritz test, (a proposition which we consider dubious at best) defendant cannot satisfy the second prong.
The order under review is affirmed, substantially for the reasons stated by Judge Furnari in his written opinion of May 11, 2009.
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