November 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FAHEEM PATTERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-08-2828.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Yannotti and Kennedy.
Defendant Faheem Patterson appeals from an order entered by the Law Division on November 25, 2008, denying his petition for post-conviction relief (PCR). We affirm.
Defendant and co-defendant Jimmie Tyson (Tyson) were charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five). Defendant and Tyson were tried before a jury.
At the trial, the State presented evidence which established that on the evening of June 14, 2003, Jose Menendez (Menendez) and Eduardo Recuendo (Recuendo) went to a liquor store in Orange, New Jersey. Outside the store, Menendez noticed a woman, later identified as Zenobia Winbush (Winbush), who was trying to attract their attention.*fn1 Menendez and Recuendo went inside and purchased beer and cigarettes. When they exited the store and returned to the parking lot, Winbush again tried to get their attention.
Tyson and defendant approached Menendez and Reuendo from behind. Tyson pointed a gun at Recuendo and defendant punched Menendez in the face. Tyson and defendant demanded that Recuendo and Menendez give them their keys, money and the contents of their pockets. Tyson removed something from Recuendo's wallet, while Menendez gave defendant his wallet and cell phone. Tyson and defendant also took the cigarettes and beer that the victims had purchased and then fled to the rear of the parking lot. The victims returned to the liquor store and called the police.
Winbush testified that on June 14, 2003, she met defendant and Tyson at a motel near the Garden State Parkway at about 10:00 p.m. Winbush did not know defendant and Tyson; however, she went with them to find some marijuana. At some point, someone gave them a ride to the liquor store in Orange. Winbush testified that she observed defendant and Tyson rob two men in the parking lot of the liquor store. According to Winbush, Tyson pointed a gun at one of the men and defendant punched the other man in the face.
Winbush further testified that, after the robbery, she ran to a nearby train station. Defendant and Tyson followed her. Defendant, Tyson and Winbush then walked along the railroad tracks. Winbush said she wanted to go home. She asked for a cell phone. Defendant gave her a cell phone. The threesome then stopped at a nearby house, where defendant spoke with several individuals. Winbush and Tyson went to a doughnut shop on Main Street, while defendant spoke with someone outside a tavern across the street.
Winbush said that Tyson gave her fifteen dollars, which she used to buy food and a drink. Defendant, Tyson and Winbush then walked down Main Street, and a police officer approached them in his car, believing they matched the descriptions of the persons who committed the robbery.
The officer engaged Winbush in casual conversation and noticed that defendant and Tyson seemed anxious. The officer called for back-up and, when he turned his car around and again approached the suspects, they fled. The officer called out and Winbush stopped. Winbush was taken into custody. She was found in possession of a cell phone, which was later identified as the cell phone taken during the robbery.
Defendant and Tyson continued to run. An officer ordered defendant to stop. Defendant complied and was taken into custody. Another officer arrived and pursued Tyson into an alleyway. Tyson was arrested. The officer searched the immediate area and found a 9mm Luger weapon under a nearby vehicle.
Defendant testified on his own behalf. He denied meeting Winbush at the motel. He testified that he and Tyson went to the liquor store, purchased liquor and then spoke with Winbush in the parking lot for about ten minutes. Defendant stated that he and Tyson then left the scene and went to the home of Thomas Howard (Howard).
Defendant additionally testified that he and Tyson were drinking on Howard's porch shortly after 10:00 p.m. Defendant denied that he robbed anyone or possessed a weapon. Defendant said that sometime after midnight, he and Tyson met Winbush and made their way to Main Street, where they were approached by the police.
Tyson also testified. He denied meeting Winbush at the motel. He denied being in possession of a cell phone or handgun. Tyson stated that he met Winbush at the liquor store around 10:00 p.m. He said that later in the evening, he spoke to Winbush across the street from Howard's house and he and defendant then walked with Winbush toward Main Street. Tyson and Winbush went to the doughnut shop. Thereafter, Tyson, defendant and Winbush walked along Main Street before they were approached by the police.
Howard testified that he had known defendant and Tyson for about eight or nine years. He said that on June 14, 2003, he was with defendant and Tyson from about 11:00 a.m. until 3:00 p.m. Later, they went for a ride with a friend and stopped at a liquor store. They returned to Howard's house and stayed on the porch drinking.
According to Howard, defendant and Tyson went to the liquor store and then remained on his porch drinking until after midnight. At around 1:00 a.m., a woman approached across the street and Tyson went over to speak with her. Howard went inside at 1:30 a.m. and, at that time, defendant joined Tyson and the woman across the street.
The jury found defendant and Tyson guilty on all counts. The court sentenced defendant on the robbery conviction to twelve years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), and imposed concurrent sentences for the other offenses. The court entered a judgment of conviction on July 16, 2004. Defendant appealed and raised the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT.
THE TRIAL COURT ERRED IN NOT PROVIDING AN INTERPRETER FOR MENENDEZ, THE STATE'S PRIMARY WITNESS AGAINST DEFENDANT.
THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL.
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON A FLIGHT CHARGE.
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO AMEND THE INDICTMENT AFTER THE CLOSE OF ITS CASE-IN-CHIEF.
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CROSS-EXAMINE THOMAS HOWARD REGARDING HIS ALLEGED SILENCE.
THE TRIAL COURT ERRED AND PREJUDICED DEFENDANT IN PERMITTING THE STATE TO INTRODUCE PRIOR STATEMENTS OF ZENOBIA WINBUSH AND IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.
THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.
In an unpublished opinion, we affirmed defendant's conviction and the sentences imposed. State v. Patterson, No. A-0275-04 (App. Div. Dec. 12, 2005). The Supreme Court denied defendant's petition for certification. State v. Patterson, 186 N.J. 604 (2006).
In June 2007, defendant filed a pro se PCR petition in the Law Division. The court appointed PCR counsel and on January 18, 2008, counsel filed an amended PCR petition. The PCR court conducted an evidentiary hearing on the petition, and filed a written opinion dated November 25, 2008, in which it concluded that PCR was not warranted on the basis of newly discovered evidence. The court also rejected defendant's claim that he was denied the effective assistance of counsel. The court entered an order dated November 25, 2008, denying PCR. This appeal followed.
Defendant raises the following arguments for our consideration:
THE TESTIMONY OF JIMMIE TYSON CONSTITUTED NEWLY DISCOVERED EVIDENCE THAT MANDATED DEFENDANT'S CONVICTION BE VACATED AND HIS PETITION FOR POST-CONVICTION RELIEF BE GRANTED.
THE INADEQUATE INVESTIGATION, PREPARATION AND PERFORMANCE BY DEFENSE COUNSEL VIOLATED PETITIONER'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION.
Defendant first argues that the PCR court erred by failing to set aside his conviction on the basis of newly discovered evidence, specifically a post-trial letter from Tyson, in which he, for the first time, asserted that defendant was not involved in the robbery essentially recanting his trial testimony. We disagree.
When PCR is sought on the basis of newly discovered evidence, the court must apply the same standard as it applies when considering a motion for a new trial on that basis. State v. Ways, 180 N.J. 171, 187 (2004). In order to obtain relief, the defendant must show that the evidence is 1) material and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was not "discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted." [Id. at 187 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
Here, the PCR court found that, if believed, Tyson's statements would be material to the defense. The court additionally found that the new evidence could have been discovered earlier through the exercise of reasonable diligence. The court further found that Tyson's post-trial statements represented a recantation of his prior statements which were made under oath. As such, the new evidence was "inherently untrustworthy." The court stated that the testimony given by defendant and Tyson at the PCR hearing was not credible and the new evidence would not change the jury verdict.
A trial court's findings of fact are binding on appeal when based on sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Moreover, deference to the court's findings is particularly appropriate where, as here, the findings "'are substantially influenced'" by the court's "'opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 471 (quoting Johnson, supra, 42 N.J. at 161).
We are satisfied that the record fully supports the PCR court's findings and its determination that defendant was not entitled to PCR on the basis of the newly discovered evidence.
Next, defendant contends that he was denied the effective assistance of counsel. Again, we disagree.
A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show that his attorney's performance was deficient and counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Here, defendant argues that his trial counsel was ineffective in his investigation of the case. At the PCR hearing, defendant's trial attorney testified that he reviewed the police reports and assigned investigators to interview defendant's alibi witness, the victims and employees of the store near where the robbery occurred. Based on that testimony, the PCR court properly determined that trial counsel had conducted a sufficient investigation of the case.
Defendant also argues that his trial attorney was deficient because he failed to "discover" that Tyson could exculpate defendant. However, Tyson admitted in the PCR hearing that he never told his trial attorney that defendant did not participate in the robbery. Moreover, defendant's attorney testified that he had no information that Tyson was solely responsible for the offense. The record thus supports the PCR court's finding that trial counsel's failure to "discover" Tyson's exculpatory information did not constitute the ineffective assistance of counsel.
Defendant additionally asserts that his trial attorney should have investigated whether Winbush was inebriated at the time of the robbery; however, there was no evidence to support that claim. Indeed, during his cross-examination, defense counsel asked Winbush whether she had been drinking alcohol on the night of the robbery, and she replied, "I don't drink."
In addition, defendant asserts that his trial attorney should have sought a Wade*fn2 hearing to challenge the victim's identifications. However, there was no evidence indicating that the identification procedure employed by the police was impermissibly suggestive. Furthermore, defendant's attorney testified that once Winbush agreed to be a witness for the State, identification was no longer a significant issue in the case.
Defendant also argues that his trial attorney misinformed him regarding the maximum sentence he could face and did not inform him of the State's plea offers. This contention is meritless. At the PCR hearing, defendant acknowledged that he was aware that the State had made a plea offer and he was aware of the maximum sentence he could receive if he went to trial. Defendant also acknowledged that he rejected a favorable plea offer because he believed it would require him to lie under oath, not because his attorney had given him bad advice.
We have considered defendant's other contentions and find that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).