August 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARIQUE SCOTT, A/K/A TARIQUE ELLIOT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Lihotz and Baxter.
Defendant Tarique Scott appeals a March 11, 2009 Law Division order denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm.
During defendant's jury trial in May 2007, the State presented proofs establishing that defendant, along with co-defendant Raymond McKnight, threatened Crystal Newsome and her companion Florin Savu, telling the couple that if they gave the men their money, they would not be shot. During the incident, defendant attacked Savu with a metal broomstick. The jury convicted defendant of second-degree robbery, third-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon and third-degree hindering apprehension. On direct appeal, defendant raised the following claims:
I. THE TRIAL COURT'S JURY INSTRUCTIONS DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below).
A. The Trial Court Opened the Door to a Conviction Based on Acts Not Charged in the Indictment.
B. The Trial Court Allowed for a Non-Unanimous Verdict by Failing to Charge on Multiple Victims.
C. The Trial Court Bolstered the State's Case by Improperly Charging the Jury that Mr. Savu Identified [Defendant] in Court.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
III. THE PCR COURT ERRED BY PROCEEDING WITH A RULING ON [DEFENDANT'S] PCR PETITION WHEN HIS DIRECT APPEAL WAS PENDING SO THE COURT SHOULD ACCEPT THIS BRIEF AS A DIRECT APPEAL. (Not Raised Below).
We rejected the claims defendant raised in Points I and II, but agreed with his contention in Point III that his claims of ineffective assistance of counsel should be deferred for post-conviction review. State v. Elliot, No. A-2310-07 (App. Div. April 6, 2010) (slip op. at 3, 26). The Supreme Court denied certification. State v. Elliot, 203 N.J. 439 (2010).
Defendant then filed a timely PCR petition in which he argued that trial counsel rendered ineffective assistance by failing to adequately cross-examine the State's witnesses, by failing to conduct a sufficient pretrial investigation, by failing to call McKnight as a defense witness and by failing to file a pretrial motion to dismiss the indictment based on the prosecutor's breach of his duty to present exculpatory evidence to the grand jury. Finally, defendant argued that he received an illegal sentence. Finding that defendant had failed to establish a prima facie case of ineffective assistance of trial counsel, and that the sentence was not illegal, the PCR judge denied defendant's PCR petition in a written opinion and order of March 11, 2009.
On appeal before us, defendant raises the following claims:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Failed to Properly Cross-Examine the State's Witnesses.
B. Trial Counsel Failed to File Pre-trial Motions.
C. Trial Counsel Failed to Conduct an Adequate Investigation.
D. Trial Counsel Failed to Adequately Advise Defendant During Plea Bargaining.
II. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE SENTENCE IS ILLEGAL.
A. The Imposition of the Sentence is Illegal Since the Court Erred in Assessing Mitigating and Aggravating Factors.
B. The Imposition of Consecutive Sentences is Illegal.
III. THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.
IV. THE LOWER COURT ERRED IN NOT CONDUCTING AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
V. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
VI. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
To succeed on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, in that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and that the deficient performance led to a conviction that otherwise would have been avoided. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987). Only if a defendant establishes a prima facie case of ineffective assistance of counsel, or if there are genuine disputes about the facts, is a defendant entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).
In Point I.A, defendant maintains that trial counsel rendered ineffective assistance by failing to "undertake an aggressive, effective cross-examination of the State's witnesses . . . as to their ability to actually witness the events which they alleged to have occurred." Defendant's argument on that subject is confined to the following:
The witnesses were Crystal Newsome, Florin Savu, Police Officer Maria Ruocco and Police Officer Brian Fitzgerald. There were a number of discrepancies between the testimony of the witnesses, yet trial counsel failed to point these differences out to any of the witnesses.
As we observed in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), a defendant must do more than present bland generalizations or bald assertions. Instead, he must "assert the facts" that would have been established through cross-examination, and must support his argument by presenting an affidavit or certification from the witness describing the testimony the witness would have presented had the witness been called and had such questions been posed. Ibid. Because defendant's argument in Point I.A is composed of nothing more than the bald generalizations that Cummings deems insufficient, we reject the claim defendant advances in Point I.A.
In Point I.B, defendant maintains that trial counsel rendered ineffective assistance by failing to file a motion to dismiss the indictment based upon the prosecutor's alleged breach of the duty established in State v. Hogan, 144 N.J. 216 (1996), to present exculpatory evidence to the grand jury. Defendant fails to explain what exculpatory information the prosecutor failed to present. We therefore reject this portion of the claim defendant advances in Point I.B.
Defendant also argues in Point I.B that trial counsel rendered ineffective assistance by failing to file a motion to suppress the statement defendant provided to police. Other than arguing that his statement was provided in violation of his rights under Miranda v. Arizona, 384 U.S. 43, 686 S. Ct. 1602, 16 L. Ed. 2d (1966), defendant presents no further legal argument. Defendant has not provided a copy of his statement to police; however, the State asserts in its brief that defendant never provided a "statement" to police. Rather, he merely responded to a generic question from police while he was being processed in which he was asked for his name, address, date of birth and social security number. Defendant provided a false name, which led to the charge of hindering apprehension. Although defendant incriminated himself by providing a false name, it was not by virtue of an interrogation as the officer's question of "what is your name?" did not have a reasonable likelihood of eliciting an incriminating response. State v. Sanchez, 224 N.J. Super. 231, 248-49 (App. Div.), certif. denied, 111 N.J. 653 (1988). Consequently, no Miranda warnings were required. Ibid. We cannot fault trial counsel for not filing a meritless motion. We reject this portion of Point I.B as well, and reject Point I.B. in its entirety.
In Point I.C, defendant first contends that trial counsel rendered ineffective assistance by failing to conduct an adequate pretrial investigation. As the PCR judge correctly observed, "[defendant] does not point to any facts that would have been revealed by a full investigation. In essence, he makes a bald assertion that his attorney did not fully investigate the incident; this assertion is unsupported by any affidavits or certifications[,]" and is therefore barred by Cummings, supra, 321 N.J. Super. at 170.
In Point I.C, defendant also argues that trial counsel rendered ineffective assistance by failing to call McKnight as a witness. We agree with the PCR judge's observation that because defendant has failed to present a certification demonstrating what testimony McKnight would have presented had he been called as a witness, this claim must fail. Ibid.
Moreover, defendant agreed with his attorney at trial that McKnight should not be called to testify. The following colloquy took place:
TRIAL COUNSEL: Judge, I've had an opportunity to interview the potential witness, the co-defendant in this case, Mr. McKnight. I've also consulted with my client about the possibility of us calling him. After speaking with Mr. McKnight and my client, we've decided that it's not appropriate to call him at this time. . . . I just want to ask [defendant], you and I have discussed the possibility of your co-defendant testifying, correct?
We thus reject the claim that trial counsel was ineffective for not calling McKnight as a witness.
We turn to Point I.D, in which defendant asserts that trial counsel was ineffective during the plea negotiation stage because by failing to interview McKnight, and by failing to ascertain what evidence McKnight could have provided, counsel deprived defendant of the information he needed to make "an informed decision on whether or not to accept a plea offer." Defendant did not raise this claim before the PCR judge. We therefore decline to consider it. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). We reject the claim defendant presents in Point I.D.
In Point II, defendant asserts that he is entitled to post-conviction relief because the sentence imposed "was excessive and illegal and should have been reduced."*fn1 In particular, he asserts that the sentence was illegal because the court imposed the sentence "without identifying the applicable mitigating and aggravating factors" and by "illegally impos[ing] consecutive sentences[.]" This claim is meritless for two reasons. First, we rejected the claim of excessive sentence on direct appeal, and defendant is barred from raising in the context of a PCR petition arguments that were considered, and rejected, on direct appeal. R. 3:22-5. Second, although couching his argument as a claim that the sentence was illegal, in reality defendant's argument is that the sentence was excessive. So long as the sentence imposed was within the sentencing range for the crime in question, which it was, the sentence is not illegal. State v. Acevedo, 205 N.J. 40, 45-47 (2011). At best, the sentence was excessive, and claims of excessive sentence are not cognizable in PCR proceedings. Id. at 47. We thus reject the claim defendant advances in Point II.
In Point III, defendant maintains that the order denying PCR must be reversed because "cumulative errors deprived [him] of due process." As there were no errors in the PCR judge's ruling, much less harmful errors, the claim advanced in Point III lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In Point IV, defendant maintains that the PCR judge erred by failing to conduct an evidentiary hearing. Because defendant failed to establish a prima facie case of ineffective assistance, no evidentiary hearing was required. Preciose, supra, 129 N.J. at 462. We therefore reject the claim defendant advances in Point IV.
In Point V, defendant maintains that the order denying PCR must be reversed because his claims are not procedurally barred by Rule 3:22-4, which prevents a defendant from raising in the PCR context a claim that could have been raised on direct appeal. As we have not relied upon Rule 3:22-4 in rejecting any of defendant's claims, we need not consider Point V any further.
Last, in Point VI, defendant maintains that the order of March 11, 2009 should be reversed because his claims are not procedurally barred under Rule 3:22-5, which bars a defendant from raising in the PCR context a claim that was considered and rejected on direct appeal. The only context in which Rule 3:22-5 has been implicated in this appeal is in connection with defendant's claims of an excessive sentence; however, as we have noted, defendant's claims pertaining to his sentence are meritless for a second, and wholly independent reason, namely, that the sentence is not illegal. Therefore, whether or not Rule 3:22-5 is triggered or not, defendant's claims respecting his sentence would have been rejected.