On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-12-1730.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2011
Before Judges Lihotz and St. John.
Defendant Attison Royer appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm the denial of his petition, substantially for the reasons set forth by Judge Patrick J. Roma in his written opinion.
Defendant is serving an aggregate term of six years subject to three years parole ineligibility after his conviction for two counts of fourth degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and 5(b)(12) (Counts One and Three); three counts of third degree school zone offenses, N.J.S.A. 2C:35-7 (Counts Two, Four and Six); third degree distribution, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (Count Five); and third degree possession, N.J.S.A. 2C:35-10(a)(1) (Count Seven).
Defendant filed a direct appeal, and we affirmed. State v. Royer, No. A-4998-05 (App. Div. Oct. 29, 2007). Defendant subsequently petitioned the trial court to reduce his sentence, which was denied.
The conviction arose out of defendant's distribution of marijuana and cocaine in Hackensack to undercover police officer Janet Jones. On the evening of December 1, 1995, members of the Hackensack Police Department's narcotics investigation unit were engaged in an undercover operation. Hackensack Detective Gutierrez, Detective Sergeant Carroll, Detective Sergeant Loquido, and Paterson Police Officer Jones were members of the team. Gutierrez witnessed defendant engage in a hand-to-hand narcotics transaction with Jones. After the buy, Jones met at a prearranged apartment with her back-ups, Gutierrez and Carroll, and tendered the narcotics evidence to Loquido. Carroll was advised about a potential suspect. Carroll knew defendant prior to December 1 and prepared a photo array, which included defendant. Jones identified defendant from the array.
On the evening of January 5, 1996, Jones purchased marijuana and cocaine from defendant at the same location. At trial, Carroll testified that he already knew defendant and that he observed him make the exchange with Jones.
Defendant filed a pro se PCR petition on April 23, 2009. PCR counsel submitted a brief and appendix in support of his petition. On March 26, 2010, a non-evidentiary hearing was held, and the judge denied the petition on April 1, 2010 in a written opinion. Judge Roma thoroughly addressed defendant's arguments that: (a) trial counsel was ineffective for failure to object to the testimony of Officer Gutierrez that he knew defendant prior to the drug offenses; and (b) appellate counsel was ineffective for failing to raise that issue and the issue of cumulative error. Judge Roma stated,
At the same time, Detective Gutierrez's testimony was minimally prejudicial, in that he only said he knew the petitioner based on the fact that [he was] a police officer in the City of Hackensack. Detective Gutierrez did not say that he knew the petitioner because he had previously arrested him or anything of the sort. Weighing the probative value against the risk of prejudice, it is clear that the testimony did not unduly prejudice the petitioner.
Defendant filed an appeal from the denial of his PCR. In a single point heading, defendant now presents the following issues for our consideration in his appeal:
APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO RAISE ON APPEAL THAT THE STATE WENT TOO FAR IN ADVISING THE JURY ABOUT HOW THE OFFICERS KNEW MR. ROYER AND BOTH TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO CHALLENGE THE COURT'S FAILURE TO GIVE A MANDATORY LIMITING INSTRUCTION.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test by establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's ...