On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lihotz.
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 ATTORNEY FAILED TO (1) CROSS-EXAMINE POLICE WITNESSES ABOUT THE LACK OF FINGERPRINT ANALYSIS OF BULLET CASINGS AND (2) FAILED TO PRESENT CHARACTER WITNESSES ON THE DEFENDANT'S BEHALF. (PARTIALLY RAISED BELOW).
THE DEFENDANT SHOULD HAVE RECEIVED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED ON THE COUNSEL'S FAILURE TO (1) CROSS-EXAMINE POLICE WITNESSES ABOUT THE LACK OF FINGERPRINT ANALYSIS OF BULLET CASINGS AND (2) TO PRESENT CHARACTER WITNESSES ON THE DEFENDANT'S BEHALF. (NOT RAISED BELOW).
A jury found defendant guilty of attempted murder, two counts of second-degree aggravated assault, third-degree possession of a weapon and second-degree possession of a weapon for an unlawful purpose. After merger, Judge Thomas R. Vena sentenced defendant to an aggregate term of incarceration of nineteen years subject to the 85% period of parole ineligibility set forth in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with applicable fines and assessments.
In an unpublished opinion, we affirmed defendant's conviction and sentence on direct appeal and certification was denied. State v. Lacy, No. A-5192-05 (App. Div. March 4, 2008) (slip op. at 19), certif. denied, 195 N.J. 422 (2008).
Defendant filed a pro se petition for PCR alleging ineffective assistance of counsel. Counsel was assigned and the PCR submission was supplemented. Defendant generally asserted "counsel failed to provide him with paperwork from his case which was necessary in order for him to assist in the preparation of trial"; neglected legal challenges to an alleged failure to receive Miranda*fn1 rights, identification and the State's omission in checking fingerprinting evidence; and the failure to investigate potential witnesses. Following oral argument, Judge Vena issued a written opinion denying defendant's petition without an evidentiary hearing. This appeal followed.
The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693); State v. Allah, 170 N.J. 269, 283 (2002). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
Counsel's efforts are measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53. Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Fritz, supra, 105 N.J. at 52. In our review, we must evaluate the conduct from the attorney's perspective at the time of trial, being careful to eliminate the distorting effects of hindsight. State v. Buonadonna, 122 N.J. 22, 42 (1991). Additionally, counsel may not be considered ...