On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-07-0898.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012
Before Judges Graves and Koblitz.
Defendant Jeffrey Drury appeals from an order dated November 13, 2009, denying his petition for post-conviction relief (PCR). Defendant raises only the issue of ineffective assistance of PCR counsel. We affirm.
Defendant is serving an aggregate sentence of twenty-five years in prison with a mandatory minimum of eighteen and one-half years for charges of sexual assault and carjacking. He was resentenced on December 12, 2008 following a remand by the Supreme Court pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Drury, 190 N.J. 197 (2007). The circumstances underlying the September 16, 2000 crimes, as well as a list of the crimes for which defendant was convicted after trial, are set forth in the Court's opinion, which we now incorporate by reference. Drury, supra, 190 N.J. at 200-06.
On July 23, 2007, while his direct appeal was pending, defendant filed
a PCR application alleging ineffective assistance of trial
counsel.*fn1 PCR counsel was appointed and filed a
twelve point brief and a supplemental brief listing many instances of
purported failures by trial counsel. Specifically, defendant contended
that trial counsel failed to: 1) challenge improper jury instructions;
2) perform pre-trial investigation
of witnesses; 3) move for a dismissal when Dr. Goode*fn2
did not appear after being served a subpoena; 4) communicate
sufficiently with defendant; 5) object to prosecutorial misconduct; 6)
sufficiently investigate defenses; 7) file a motion to suppress
defendant's statement; 8) subpoena a defense DNA expert; and 9)
identify the inconsistencies between the Grand Jury and trial
testimony of one of the victims. Defendant also alleged that the trial
transcripts were tampered with in that the victim of the aggravated
sexual assault had actually stated under oath before the jury that she
"did agree to have sex with [defendant]."
In an oral decision on November 13, 2009, the PCR judge 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 that same day. The PCR judge made detailed findings, which are amply supported by the record, and correctly concluded that defendant failed to show either that his trial counsel was ineffective or that he was prejudiced by counsel's allegedly defective performance.
On appeal from the denial of his petition, defendant presents the following argument:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL.
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.*fn3 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 v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980); see also State v. Perry, 124 N.J. 128, 153 (1991).
"As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 315 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Additionally, a defendant's dissatisfaction with his or her counsel's exercise ...