December 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN D. HAYES, A/K/A DARRYL BRIDGES, A/K/A DARVIN ELDER, A/K/A DARRYL K. HAYES, A/K/A KEVIN D. HAYES, A/K/A RAHEEM HAYES, A/K/A RAHIM HAYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 01-11-1281 and 01-11-1285.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2011
Before Judges Yannotti and Espinosa.
Defendant Kevin D. Hayes appeals from an order entered by the Law Division on June 3, 2010, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Indictment No. 01-11-1281 with second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count five); and third-degree criminal restraint, N.J.S.A. 2C:13-2 (count six). Defendant also was charged under Indictment No. 01-11-1285 with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
On March 11, 2004, defendant pled guilty to armed robbery, as charged in count two of Indictment No. 01-11-1281, and certain persons not to have weapons, as charged in Indictment No. 01-11-1285. In addition, he pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, as charged in count three of Indictment No. 04-02-0189. The State agreed to recommend a sentence of fifteen 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).
The trial court sentenced defendant to fifteen years on the armed robbery charge, subject to the NERA period of parole ineligibility, and a concurrent term of ten years on the certain persons charge. Defendant also was sentenced to a concurrent five-year term for the CDS offense. Thereafter, defendant filed a motion to correct the sentence imposed for the armed robbery. The trial court entered an order dated March 30, 2007, denying that motion. Defendant filed an appeal, but the appeal was withdrawn.
Defendant then filed a pro se PCR petition, which was dated March 19, 2009. He alleged that he was denied the effective assistance of counsel. The court appointed PCR counsel, who filed a brief in support of the petition. Counsel argued that trial counsel was ineffective because he failed to: 1) pursue a speedy trial; 2) seek a hearing to suppress the statements defendant made to the arresting officer; 3) seek a hearing to challenge the victim's identification of defendant as the perpetrator of the robbery; 4) file a notice of alibi defense; and 5) adequately investigate the case.
Counsel further argued that a new trial should be ordered because the State allegedly withheld evidence favorable to defendant, and because the trial court had denied defendant his right to a fair trial by failing to take notice of the State's discovery violations, which hampered defendant's right to present a clear defense. Counsel sought an evidentiary hearing on the petition.
The PCR court considered the petition on June 3, 2010. The court decided that an evidentiary hearing was not required and, after hearing the arguments of counsel, placed its decision on the record. The court found that defendant's speedy trial claim was without merit. The court additionally determined that defendant had not been denied the effective assistance of counsel, and defendant had not established that the State failed to provide him with exculpatory evidence.
The PCR court entered an order dated June 3, 2010, denying defendant's petition. This appeal followed. Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED BY REFUSING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING AND BY DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT.
We are convinced from our review of the record that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Nevertheless, we add the following brief comments.
A claim that a defendant was denied the effective 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). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A defendant also must show that there exists 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. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).
Here, the record shows that in September 2001, a New Brunswick police officer responded to the report of an armed robbery at a travel agency located on George Street in New Brunswick. Upon arriving there, the officer observed defendant running from the agency towards Hassart Street, removing pieces of his clothing as he ran. It appears that defendant had been dressed in what the PCR court described as "[M]iddle [E]astern" garb.
The officer chased defendant and apprehended him in a building on Commercial Avenue. The officer arrested defendant, and took him to the travel agency, where Rafael Martinez (Martinez), one of defendant's friends, positively identified him as the perpetrator of the robbery. Defendant was found with $17,000 in cash and checks, calling cards and a firearm.
Defendant argues that his trial attorney failed to diligently pursue a motion to suppress his statement to the police, as well as Martinez's identification. However, as the PCR court found, defendant's attorney could have pursued those motions if the case went to trial. Moreover, defendant has not established that, if those motions had been made, they would have been successful.
Defendant further argues that his attorney was deficient because he failed to adequately investigate the case. He claims that counsel's failure to investigate resulted in his inability to obtain certain discovery materials, including copies of the 911 call to the police, the police radio dispatch, and the video recording from the police vehicle. However, even if we assume that counsel erred by failing to obtain these materials, defendant has not shown that any of this information would have provided him with a credible defense to the robbery charge or led to a different result here.
In addition, defendant contends that his trial attorney erred by failing to assert his right to a speedy trial. He notes that there was a two and one-half year delay between the arrest and the plea. He contends that this delay was excessive and it prejudiced his defense. The PCR court found no merit in this claim. The record supports that determination.
The PCR court properly considered defendant's argument in light of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which requires the court to consider the length of the delay, the reasons for the delay, the defendant's assertion of the right to a speedy trial, and whether the defendant was prejudiced by the delay. Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 116-17.
Here, the PCR court found that the delay between defendant's arrest and his plea was not excessive and, moreover, there was a reasonable explanation for that delay. The court noted that various motions had been filed on defendant's behalf, and he changed attorneys several times. The court also pointed out that a motion asserting defendant's right to a speedy trial was never filed.
The court further found that defendant was not prejudiced by the delay. The court noted that defendant claimed that he had an alibi witness who would have testified at trial but, due to the passage of time, that witness could not be found. Defendant also claimed that he could no longer locate the victim of the crime. The court stated, however, that these witnesses were available when defendant pled guilty.
Thus, the record shows that defendant's attorney was not deficient in failing to raise a speedy trial claim on defendant's behalf. Furthermore, defendant has not shown that, even if counsel had raised that claim, it would have been successful.
Defendant additionally contends that the PCR court erred by denying his petition without an evidentiary hearing. Again, we disagree. An evidentiary hearing was not required here because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).
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