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State of New Jersey v. Josephus Nyema

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 25, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPHUS NYEMA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-10-0715.

Per curiam.

Submitted October 5, 2011

Before Judges Graves and Koblitz.

Defendant Josephus Nyema appeals from an order dated September 30, 2009, denying his petition for post-conviction relief (PCR). We affirm.

On May 19, 2005, a jury convicted defendant of third-degree forgery, N.J.S.A. 2C:21-1(a)(3) (count one), and fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4(a) (count two). After merging count two into count one, the court sentenced defendant to a three-year period of probation. In a subsequent proceeding on October 14, 2005, the court granted the State's motion to compel defendant to forfeit his public employment as a corrections officer because he was convicted of an offense involving dishonesty. N.J.S.A. 2C:51-2(a)(1).

On defendant's direct appeal, we affirmed his convictions and sentence. State v. Nyema, No. A-2334-05 (App. Div. Nov. 16, 2007), certif. denied, 194 N.J. 273 (2008). In our prior opinion, we summarized the State's proofs and defendant's contentions, which we now incorporate by reference.

On April 9, 2008, defendant filed a pro se PCR petition. An amended petition was subsequently filed by assigned counsel. In a supporting certification dated November 12, 2008, defendant alleged his trial attorney was ineffective for: (1) failing to advise him of the pretrial intervention program; (2) failing to obtain a copy of the grand jury testimony; (3) failing to interview potential witnesses; and (4) failing to inform him that he would be required to forfeit his public employment if convicted.

In an oral decision on September 22, 2009, the PCR court determined that defendant failed to substantiate his ineffective-assistance-of-counsel claims and denied his petition. An order memorializing the court's decision was entered on September 30, 2009.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT I

THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.

A. COUNSEL'S FAILURE TO PURSUE PRE-TRIAL INTERVENTION FOR THE DEFENDANT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

B. COUNSEL'S ASSISTANCE WAS RENDERED INEFFECTIVE BY HIS FAILURE TO OBTAIN THE GRAND JURY TRANSCRIPT OF THE PROCEEDINGS WHICH RESULTED IN DEFENDANT'S INDICTMENT AND CONSEQUENTLY FAILED TO MOVE FOR DISMISSAL OF THE INDICTMENT.

C. DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW A POTENTIAL DEFENSE WITNESS OR SUBPOENA THAT WITNESS PRIOR TO TRIAL AND BY FAILING TO INTERVIEW THE STATE'S WITNESSES IN PREPARATION FOR TRIAL.

D. DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM THE DEFENDANT THAT IF HE WERE CONVICTED OF THE CRIMES CHARGED IN THE INDICTMENT, HE WOULD BE SUBJECT TO CIVIL PENALTIES PURSUANT TO N.J.S.A. 2C:51-2, THE FORFEITURE STATUTE.

POINT II

THE COURT SHOULD HAVE GRANTED [AN] EVIDENTIARY HEARING IN THIS MATTER.

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add only the following comments.

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing Rule 3:22-10). An evidentiary hearing is not warranted unless a defendant presents a prima facie claim and the facts supporting the claim are not part of the trial record. Ibid. To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz two-prong test.*fn1

Under the first prong, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Roundtree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In the present matter, Judge Darlene Pereksta made detailed findings, which are amply supported by the record, and she correctly concluded there was no showing that defendant's attorney was ineffective or that defendant was prejudiced by the allegedly defective performance. Accordingly, we affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Pereksta on September 22, 2009. See State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000) ("Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists.").

Affirmed.


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