July 27, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HARRY ZAMOR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 01-11-1342, 01-11-1387, and 01-11-1388.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 5, 2011
Before Judges Payne and Baxter.
Harry Zamor was the subject of four indictments: 00-09-1121, charging absconding from parole; 01-11-1342, charging drug offenses; 01-11-1387, charging armed robbery and other crimes; and 01-11-1388, containing a certain persons charge. He was tried on all but the absconding indictment and found guilty, although the jury acquitted defendant of armed robbery in connection with indictment 01-11-1387, and instead found armed burglary.
Sentences were significant. He received a sentence of five years for third-degree absconding from parole, N.J.S.A. 2C:29-5b, consecutive to the sentence imposed on indictment 01-11-1387. On indictment 01-11-1342, defendant received an extended term sentence of seventeen years with seven years of parole ineligibility for second-degree possession of a controlled dangerous substance with the intent to distribute it within 500 feet of a public park, N.J.S.A. 2C:35-7.1. On indictment 01-11-1387, defendant received a sentence of five years in custody for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; ten years in custody with a five-year period of parole ineligibility for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; ten years in custody with an eighty-five percent period of parole ineligibility for second-degree armed burglary, N.J.S.A. 2C:18-2; and eighteen months in custody for fourth-degree assault, N.J.S.A. 2C:12-1b(4). He received a sentence of nine years in custody with a three-year period of parole ineligibility on indictment 01-11-1388, charging him with a second-degree crime as a person not to have weapons, N.J.S.A. 2C:39-7, consecutive to the sentences on indictments 01-11-1387 and 00-09-1112.
Defendant appealed his convictions pursuant to indictment 01-11-1387 (armed burglary), and we affirmed those convictions on appeal, but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Zamor, No. A-5061-04 (App. Div. May 7, 2007). On appeal, he raised the following issues as plain error: (1) the judge erroneously precluded the jury's consideration of the absence of fingerprints; (2) the prosecutor wrongfully utilized character assassination to prove his case; (3) prosecutorial misconduct occurred during summation; (4) the judge erred in failing to instruct the jury on the lesser-included offense of criminal trespass; (5) the prosecutor improperly shifted the burden of proof to him; (6) the court erred by failing to sanitize his convictions before they were admitted into evidence; (7) the judge erred in instructing the jury that it could infer a consciousness of guilt from flight; (8) merger of the conviction for unlawful possession of a weapon and for the "certain persons" offense should have occurred; and (9) the conviction for second-degree possession of a weapon for an unlawful purpose should have been merged with the substantive crime of fourth-degree assault. Defendant also argued that his sentence was excessive, the judge engaged in unlawful fact-finding, the aggravating and mitigating factors were not properly analyzed, and that the judge erred by imposing consecutive sentences. On remand, the judge imposed the same sentences, and the matter was not further appealed.
Defendant also appealed his conviction under indictment number 01-11-1387 for possession of cocaine, possession with the intent to distribute, and possession with the intent to distribute within 500 feet of public park. We affirmed defendant's convictions. State v. Zamor, No. A-1513-05 (App. Div. October 30, 2007). In that appeal, defendant challenged
(1) the judge's instruction on credibility; (2) the State's reliance on absentee witnesses to implicate defendant; (3) the State's proof of each element of the 500-foot charge; (4) prosecutorial misconduct; (5) the State's use of evidence of his silence at or near the time of his arrest; and (6) the excessive nature of his sentence.
Following the affirmance of defendant's convictions, he moved for post-conviction relief (PCR) on the armed burglary and drug convictions. Following the denial of his petition without an evidentiary hearing, defendant appealed.
On appeal, defendant raises the following issues through counsel:
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AT HIS BURGLARY TRIAL REQUIRING REVERSAL. (Partially Raised Below.)
A. Trial counsel was deficient in failing to object to the prosecutor's inflammatory and prejudicial commentary to the jury.
B. Trial counsel was deficient in failing to make effective arguments for acquittal to the jury; appellate counsel failed to raise the issue on direct appeal.
C. Trial counsel failed to object to the court's instruction on the jury's consideration of the absence of fingerprint evidence in the case.
D. Trial counsel was deficient in failing to request that the lesser-included offense of criminal trespass be submitted to the jury.
E. Trial counsel was deficient in failing to request that defendant's convictions be sanitized.
THE APPELLATE DIVISION PLAINLY ERRED IN FINDING [NO] ERROR IN THE TRIAL COURT'S INSTRUCTION THAT THE JURY WAS FORBIDDEN TO CONSIDER THE LACK OF FINGERPRINT EVIDENCE IN THE CASE. R. 2:10-2 (Not Raised Below.)
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AT HIS DRUG POSSESSION TRIAL. (Partially Raised Below.)
A. Trial counsel was deficient in failing to object to the prosecutor's inflammatory and prejudicial commentary to the jury.
B. Trial counsel was ineffective for not moving for dismissal of the charge of possession of CDS with intent to distribute within 500 feet of a public park.
C. Trial counsel was deficient in failing to make effective arguments for acquittal to the jury; appellate counsel failed to raise the issue on direct appeal.
In addition, defendant makes the following arguments pro se.
WHEREAS CONVICTIONS AGAINST THE DEFENDANT WERE NOT THE RESULT OF A UNANIMOUS VERDICT, THUS UNCONSTITUTIONAL, APPELLATE COUNSEL'S FAILURE TO SUBMIT THAT CLAIM FOR REVIEW CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE WHEN HE FAILED TO MOTION FOR DISMISSAL OF THE BURGLARY CHARGE DUE TO INSUFFICIENCY OF EVIDENCE AND APPELLATE COUNSEL'S FAILURE TO RAISE THAT CLAIM FOR REVIEW VIOLATES RIGHT TO EFFECTIVE ASSISTANCE UNDER THE SIXTH AMENDMENT.
CONVICTION FOR POSSESSION OF A FIREARM WITHOUT FIRST HAVING OBTAINED A PERMIT, THOUGH DEFENDANT OWNS NO GUNS, AND THE STATE HAS NOT MET IN RE WINSHIP'S REQUIREMENTS, VIOLATES DUE PROCESS. THUS, APPELLATE COUNSEL'S FAILURE TO CHALLENGE THAT UNLAWFUL CONVICTION CONSTITUTES INEFFECTIVE ASSISTANCE.
PETITIONER WAS DENIED RIGHTS TO IMPARTIAL JURY IN VIOLATION OF SIXTH AMENDMENT TO THE CONSTITUTION WHEN TRIAL COURT USED JURORS WHO SAT IN PREVIOUS PROSECUTION TO PROCEED WITH SECOND TRIAL OF PETITIONER FOR SIMILAR CRIME.
The facts of the armed burglary case, as they could have been found by the jury, establish that on September 9, 2001, at approximately 2:00 a.m., two men knocked on the door of an apartment occupied by Carol Ademoji, her husband, and five children in Elizabeth. When Ademoji opened the door, the two men, friends of Ademoji, were pushed inside by defendant, who was carrying a small silver revolver. Defendant demanded that Ademoji and the two men move to the back of the kitchen, where he checked the three for cash. Following threats to "pop a bullet into their ass," Ademoji retrieved $100 from her bedroom and gave it to defendant. Thereafter, defendant pointed his gun at the heads of Ademoji's seven- and eleven-year-old children, and he assaulted Ademoji's friend, Kalid, hitting him over the head with his gun. Upon the arrival of the police, defendant ran out of the back door of the apartment, but he was found, hiding beneath two parked cars in a driveway behind Ademoji's residence. Two handguns were found within six inches of his hands. After defendant was arrested and taken back to Ademoji's residence, he was identified as the person who had entered the home.
At defendant's drug trial, the State introduced evidence that, on August 20, 2001, at approximately midnight, two Elizabeth police officers were on duty in the immediate vicinity of Jefferson Park conducting a surveillance of a building located at 471 Madison Avenue. While doing so, they observed on four occasions the transfer of money to defendant, the retrieval of drugs by defendant from an alleyway stash, and subsequent hand-to-hand drug transactions by him. As the result of their observations, the officers called back-up police who approached defendant in their patrol car. Upon seeing the car, he ran to 530 Madison Avenue, where he was arrested inside the building. One-hundred thirteen vials of cocaine were found at the location of defendant's stash.
Addressing defendant's appeal from the denial of PCR through counsel, we note that many of his arguments are identical to those raised and decided against him on direct appeal, but now they are clothed in the constitutional language of ineffective assistance of counsel. In that regard, Point IA corresponds to Point III of defendant's brief in support of appeal from the armed burglary conviction; Point IC corresponds to Point I of his brief on appeal; Point ID corresponds to Point IV of his brief on appeal; and Point IE corresponds to Point VI of that brief. Similarly, Point IIIA corresponds to Point IV of defendant's brief on appeal from his drug convictions, and Point IIIB corresponds to Point III of that brief. As such, the claims are barred by Rule 3:22-5, which provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule . . . ." The mere cloaking of identical arguments in constitutional terms is insufficient to escape the bar. State v. Trantino, 60 N.J. 176, 180 (1972).
Defendant additionally contends that the opening and closing statements by defense counsel in the armed burglary and drug trials were ineffective, and that appellate counsel was ineffective in failing to raise that issue on direct appeal in the two cases. We judge that argument under standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prove ineffective assistance of counsel, defendant must demonstrate both that counsel's performance was deficient and also that this deficient performance prejudiced the defense. Ibid. Performance will be deemed deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. In order to demonstrate prejudice, defendant must demonstrate that there is 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. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
We defer to the factual findings that underlie the trial judge's determination on PCR, but we owe no deference to the judge's determination itself. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the judge's fact-finding satisfies the applicable legal standard is a question of law subject to our plenary review. Ibid.
In both the drug and burglary trials, defense counsel gave a generic opening statement, in which he explained to the jury the presumption of innocence, the State's burden to establish guilt beyond a reasonable doubt, and the fact that defendant had no burden to produce evidence in his own defense. Additionally, he urged the jurors to keep an open mind, and he expressed confidence that at the end of the trial, the jurors would find defendant not guilty. As such, the openings, which were of a type often given by defense attorneys at criminal trials, were well articulated and legally correct. Defendant did not overcome the strong presumption that counsel's conduct in giving the openings fell within the range of reasonable professional legal assistance.
In his closing argument in the burglary trial, defense counsel, echoing testimony given by defendant, argued that defendant had not entered Ademoji's apartment, that he was the victim of misidentification, and that defendant did not ever have possession of the two guns found by the police. In doing so, counsel painted a picture of a lawless neighborhood where a knock on the door at 2:00 a.m. would not be considered unusual, and a misidentification would be deemed by those making it to be inconsequential. Counsel pointed to inconsistencies in the testimony of the witnesses, and he noted the improbable nature of testimony that two guns were found within defendant's reach and that he utilized both while in Ademoji's apartment. As a final matter, he pointed out that money is essentially fungible, and thus the fact that considerable cash was found on his person was not evidence that he had taken $100 from Ademoji.
In his summation following the presentation of evidence in the drug trial, counsel noted that, when arrested, defendant had no money on him and he did not have the flashlight that the police had observed him to be carrying, but no one had seen him discard either cash or the light and neither was found following defendant's arrest. Counsel pointed out the improbability that the surveillance conducted by a white officer with binoculars in a black neighborhood could have occurred without notice by the residents. He argued that the officers would have been unable to see the transactions to which they testified, given the distance and poor lighting. Additionally, counsel argued that, if defendant had been guilty, he would have fled when a first police car drove up and arrested another person at the location. As a final matter, counsel argued that whoever the police were chasing into the building in which defendant was arrested had gotten away, and that defendant was the victim of misidentification. In both closing arguments, counsel emphasized the presumption of innocence and the State's burden of proof.
In his brief on appeal, defendant argues with respect to the burglary trial that "[t]he entire character of the defense counsel's commentary to the jury portrayed agreeable attorneys on either side that had developed a non-adversarial consensus that defendant was guilty of all of the charges." That statement is simply not supported by the record in the matter. With respect to the drug trial, defendant argues that "[t]rial counsel failed to directly advance a theory of the case that defendant's testimony was truthful, that his story was factually correct, and that the jury's job was to acquit him." Again, this contention is not borne out by the record. Rather, our review demonstrates competent performance by counsel in his role as defendant's attorney, and no basis in either counsel's openings or closings for appeal. That counsel was ultimately unsuccessful in obtaining verdicts exonerating defendant does not establish that he was ineffective in a constitutional sense. State v. Davis, 116 N.J. 341, 357 (1989); State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).
As a final matter, defendant urges us to find plain error in the determination of another panel of this court that, in the burglary trial, the judge's response to the jury's question regarding fingerprints was erroneous. We decline to recognize as valid this collateral attack. If defendant regarded the issue to have been wrongly decided, his remedy was to appeal to the Supreme Court. He did not do so.
In his pro se brief, defendant first argues that the jury's verdicts in the armed burglary and drug trials were not unanimous and that counsel was ineffective in failing to raise that issue on appeal. We reject defendant's argument. The transcript of the burglary trial discloses responses by the jury foreperson as to the jury's verdict on each count. With respect to all but the charge of armed robbery, the foreperson announced that the jury had found defendant to be guilty and that the verdict was unanimous. The jury was then polled, and although the results of the polling were not transcribed, the judge pronounced the polling to have been "unanimous." The same procedure was employed in connection with defendant's drug trial, with the same result. As a consequence, we find no basis for defendant's challenge to the verdicts and reject the argument that appellate counsel was ineffective in failing to pursue a similar argument on appeal.
Defendant next argues that trial counsel was ineffective because he failed to seek dismissal of the burglary charge on the ground that the evidence was insufficient, and that appellate counsel was likewise ineffective in not raising the insufficiency of the evidence on appeal. In support of his argument, defendant contends that the State failed to prove that he entered Ademoji's apartment without her consent. However, our review of the record in the matter satisfies us that Ademoji opened the door upon identification of "Jaz" as the person knocking, and when she did so, defendant pushed Jaz and another man, identified as "Eric" into Ademoji's apartment at gunpoint. According to Ademoji: "When he [defendant] was pushing them, I was just trying to block them coming in." We thus find no consent on Ademoji's part to defendant's entrance. Her permission, if any, was limited to Jaz and did not include defendant, who entered the apartment without permission with the purpose to commit an offence therein. State v. Mosch, 214 N.J. Super. 457, 463 (App. Div. 1986), certif. denied, 107 N.J. 131 (1987).
Viewing the State's evidence in its entirety, and giving the State the benefit of all reasonable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); Rule 3:18-1. Thus any argument by trial or appellate counsel on the issue now raised would have been unavailing. Accordingly, defendant has failed to meet Strickland's standards for ineffectiveness.
Defendant argues additionally that counsel was ineffective in failing to claim on appeal that he could not have been found guilty of unlawful possession of a weapon because he asserted at trial that he did not own one. However, the State demonstrated at trial that, at the time defendant was discovered beneath the cars, two guns were under his possession and control. N.J.S.A. 2C:2-1c (defining possession; State v. Morrison, 188 N.J. 2, 14 (2006) (describing three forms of possession); State v. Brown, 80 N.J. 587, 597-98 (1979) (finding ownership not dispositive of possession). Whether defendant owned the guns was, in the circumstance, immaterial. Accordingly, defendant's argument lacks merit.
As a final matter, defendant argues that he was denied his right to an impartial jury when the jury was required to determine whether he was guilty of the crime of possession of a weapon by a convicted felon after determining that he was guilty of weapons and other charges in the burglary trial. However, in State v. Ragland, 105 N.J. 189 (1986), the Supreme Court established procedures and jury instructions specifically to avoid the prejudice that defendant has envisioned. Id. at 194-96. Because adherence to those procedures occurred in this matter, we reject defendant's argument.
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