On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-06-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2010
Before Judges Fuentes and Ashrafi.
Defendant Jimmy Jones appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
Defendant's first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. Defendant was tried again before a different jury and convicted of second degree distribution of heroin within 500 feet of a public park, N.J.S.A. 2C:35-7.1; third degree distribution of heroin within 1,000 feet of school property, N.J.S.A. 2C:35-7; and third degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3). On October 25, 2002, the court sentenced defendant to an aggregate extended term*fn1 sentence of twelve years, with five years of parole ineligibility.
On defendant's direct appeal, we affirmed his conviction and sentence, State v. Jimmy Jones, Docket No. A-2288-02, (App. Div. May 21, 2004), and the Supreme Court denied his petition for certification, 181 N.J. 545 (2004). We incorporate by reference the factual recitation of the evidence presented against defendant as reflected in our unpublished opinion. Id. slip op. at 2-4.
Defendant filed this PCR petition alleging ineffective assistance of counsel based on: (1) trial counsel's failure to object to certain remarks made by the prosecutor in his opening statements; (2) failure to object to certain parts of the testimony of Officer Grimmer; and (3) counsel's failure to request a curative instruction. Judge Moynihan denied the petition without an evidentiary hearing, finding that defendant had not established a prima facie case of ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987). In this light, the court found no need for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).
After reviewing the record developed before the jury, Judge Moynihan characterized the case against defendant as supported by "overwhelming evidence" and defendant's arguments concerning defense counsel's performance as speculative, noting they were rejected in large part by this court on direct appeal. Defendant now appeals raising the following argument:
THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.
We reject this argument and affirm substantially for the reasons expressed by Judge Moynihan in his oral opinion delivered from the bench on April 4, 2008. To establish a prima facie case of ineffective assistance of counsel, a defendant must 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, and 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. Under Rule 3:22-10, a trial judge has the discretion to determine the viability of a PCR petition without conducting an evidentiary hearing. Preciose, supra, 129 N.J. at 462.
We discern no legal basis to conclude that Judge Moynihan's decision to reject defendant's petition without an evidentiary hearing was a mistaken exercise of his discretion under Rule 3:22-10. We also agree that the essence of defendant's PCR claims is rooted in the arguments we rejected on direct appeal, and therefore not cognizable in this setting under Rule 3:22-5, ...