On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-1951.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012 -
Before Judges Grall and Skillman.
Defendant Terrell Sanders appeals from the denial of his petition for post-conviction relief. We affirm.
A jury found defendant guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); and second-degree possession of heroin with intent to distribute in a public park zone, N.J.S.A. 2C:35-7.1a. Defendant was subject to a mandatory extended term of imprisonment because of a prior conviction, pursuant to N.J.S.A. 2C:43-6f, and sentenced to a ten-year term with a five-year period of parole ineligibility. On direct appeal we affirmed defendant's convictions and sentence and remanded for correction of technical errors in the judgment, State v. Sanders, No. A-3377-07 (App. Div. July 22, 2009), and the Supreme Court denied his petition for certification. 200 N.J. 504 (2009).
Defendant filed a timely petition for post-conviction relief asserting that his trial counsel was ineffective for failure to obtain a fingerprint analysis, secure the testimony of a favorable witness and move for a judgment of acquittal. On this appeal, defendant challenges the court's denial of his claims based on counsel's failure to obtain the fingerprint analysis and secure the testimony of an "important" witness, Shareef Allen.
To prevail on either of these claims of ineffective assistance, defendant must show that reasonably competent counsel would have done what he faults his attorney for failing to do and that he was prejudiced by his attorney's omissions.
State v. Jack, 144 N.J. 240, 249 (1996); see Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). The range of professional competence is wide, and there is a "'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007) (omitting citations). Representation is not reasonably competent if counsel commits "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). There is prejudice only when there is a reasonable probability that the outcome would have been different but for counsel's serious error. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A prima facie case of ineffective assistance is established where the evidence, viewed in the light most favorable to defendant, would permit findings of deficient performance and prejudice. State v. Preciose, 129 N.J. 451, 462-63 (1992). Claims based on failures related to the gathering and presentation of a defense require competent assertions of facts that could have been uncovered, "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Unsupported assertions are insufficient. Id. at 171.
We turn to consider the facts disclosed by the trial record and the evidential materials defendant submitted in support of his petition for post-conviction relief in light of the foregoing standards. We address his claim based on fingerprint analysis in Section A and his claim based on the missing witness in Section B.
On the evening of September 3, 2006, Sergeant Thomas McVicar of the Jersey City Police Department went to Bayside Park to investigate a report that a group gathered there might be involved in illegal activity. McVicar noticed a group of between fifteen and twenty persons. He was one of about twenty officers who came to investigate, and he watched the members of the group move away, some toward a stairway leading to a terrace. McVicar and the others approached the gang and gathered its members to speak to them. McVicar saw defendant remove something from his pocket and stick it on a post in a chain link fence.
While another officer detained defendant at McVicar's request, he went to the fence post and retrieved a magnetic keyholder with four bags of heroin inside. Consequently, defendant was placed under arrest. During a search of ...