June 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DALE FOAT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-622.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 16, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant Dale Foat appeals from the June 24, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel and requesting an evidentiary hearing. We affirm.
The record reflects that on the afternoon of March 16, 2005, Lieutenant Paul Schuster of the New Brunswick Police Department was conducting surveillance in an area of the city known for its drug activity. He received a tip from a confidential informant that drugs were being sold on the corner of Remsen Avenue and Hale Street. The officer observed defendant, dressed in the clothing described by the confidential informant, at the intersection. Lt. Schuster also observed defendant engaging in what appeared to be drug transactions with two men on separate occasions, including Lorenzo Taylor. Co-defendant Taylor was arrested and charged in count one. He pled guilty to a misdemeanor disorderly persons offense and testified at defendant's trial. He did not identify defendant but admitted he was driving a specific car and bought drugs from someone on Hale Street on the day in question. Defendant's stash was found under a bush outside his brother's residence on Hale Street.
Defendant was indicted by a Middlesex County Grand Jury on third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5b(3) (count two); third-degree possession with intent to distribute heroin on or near school property, N.J.S.A. 2C:35-7 (count three); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(l) (count four); and third-degree distribution of heroin on or near school property, N.J.S.A. 2C:35-7 (count five). Following denial of a suppression motion, defendant was convicted by a jury of all counts.*fn1
Defendant appeared for sentencing on March 24, 2006, at which time the trial court granted the State's motion to sentence defendant to an extended term, N.J.S.A. 2C:43-6f, on the subject indictment. On counts three and five, the court imposed concurrent sentences of ten years in prison, five years without parole, and merged the balance of the counts.
Defendant appealed, and in an unpublished opinion we affirmed his conviction and sentence, except to remand for resentencing on counts three and five under State v. Thomas, 188 N.J. 137 (2006). State v. Foat, No. A-0679-06 (App. Div. May 23, 2008). The Supreme Court denied certification. State v. Foat, 196 N.J. 596 (2008).
On May 6, 2009, defendant filed a PCR petition by a pro se submission and counsel filed an amended PCR petition on his behalf on April 30, 2010. Defendant claimed, in pertinent part, that James Pfeffer, his Public Defender, was ineffective in his handling of the suppression motion, particularly in not calling defendant to testify. He also alleged ineffective assistance of trial counsel, Amilcar Perez, a pool attorney for the Public Defender's Office who was assigned to represent him one week prior to trial, in his general performance at trial.
Defendant certified that Pfeffer "spent almost no time preparing [the] case" and he "seemed to know almost nothing about the facts and the necessary witnesses" at the suppression hearing. Defendant further stated that after Lt. Schuster testified at the suppression hearing, Pfeffer "basically told [him] that he did not think it was necessary for [him] to testify." He complained that Pfeffer presented no witnesses even though defendant had given him "names of people with relevant information" and defendant "did not understand how he expected to let the judge know anything else about the case without having [defendant] testify." According to defendant, he would have testified that the police, without justification, searched him and his residence. Defendant further certified that after he lost the suppression motion, without warning or his consent, a new attorney was assigned to the case. Defendant stated that he did not meet Perez until he visited him in jail a week before trial and he "spent no time with [defendant] discussing" the case. According to defendant, Perez was unable to effectively cross-examine Lt. Schuster because of his lack of preparation.
Following oral argument on June 18, 2010, Judge Lorraine Pullen denied defendant's PCR petition, finding there was no need for an evidentiary hearing. She reasoned that defendant had been afforded the opportunity to testify at the suppression hearing on two occasions but declined and had simply decided "after the fact" that he had something to say. She noted that defendant had "plenty of prior experience with the criminal justice system" and he presented no evidence that he did not understand the procedure or that he had a right to testify. Based on her review of the trial transcripts, Judge Pullen was satisfied Perez "conducted himself in a manner consistent with a very competent defense attorney [--] [h]e made all the arguments[,] [h]e did the cross examinations[, and] [h]e did what he could do based on what he had to work with." She noted that on PCR "[t]here [was] not even an allegation . . . that he did not do what he was supposed to do or he did it in such a negligent manner that it precluded [defendant] from getting a fair trial." The judge additionally found speculative and completely without merit defendant's argument that the mere substitution of counsel "rises to a level so egregious as to  preclude him from getting his day in court."
Accordingly, Judge Pullen was satisfied defendant failed to establish ineffective assistance of either suppression or trial counsel under the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious 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 rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). The ruling was memorialized in an order of June 24, 2010, which defendant appealed.
On appeal, defendant argues that the matter must be remanded for an evidentiary hearing because he established a prima facie case of ineffectiveness of suppression hearing counsel, who induced him not to testify, and ineffectiveness of trial counsel, whose performance was tantamount to a complete denial of representation.
We disagree and affirm substantially for the reasons articulated by Judge Pullen in her comprehensive opinion. On PCR, a defendant has the burden of proving his or her entitlement to collateral relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). A defendant must establish a prima facie case, meaning a reasonable likelihood of succeeding on the merits, to obtain an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (l997); Preciose, supra, 129 N.J. at 462.
Following Lt. Schuster's testimony at the suppression hearing, Pfeffer spoke with defendant off the record and then represented to the court that they discussed whether or not defendant was going to testify. He asked the court for time to answer defendant's "additional questions" and "fully explain the issue of cross-examination." Following a recess, during which another matter was heard, the following colloquy ensued:
[MR. PFEFFER]: I had an opportunity, thanks to Your Honor, to speak to [defendant] concerning the issues of cross-examination and his right to cross-examine, his right to testify at this hearing today. After being fully informed [defendant] has indicated that he is not going to testify at this suppression motion. But I wanted the record to reflect that.
Is that correct, Mr. Foat?
THE DEFENDANT: Yes.
MR. PFEFFER: It is your decision not to testify today?
THE DEFENDANT: Yes.
Pfeffer then asked for and received additional time from the court to view the binoculars that Lt. Schuster used during the surveillance. In closing argument, Pfeffer emphasized inconsistencies in Lt. Schuster's testimony, including the failure to note in his report that he had used binoculars and the different distances he testified to in terms of feet that he was from the scene of the transactions.
As noted by Judge Pullen, the record demonstrates that defendant discussed with Pfeffer the issue of taking the stand at the suppression hearing and defendant chose not to testify. The record is devoid of evidence that Pfeffer put pressure on defendant not to testify; to the extent Pfeffer recommended defendant not testify because of a concern with his credibility, that is a tactical decision not subject to review on PCR. See State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div.) (citing Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (l99l)) ("In determining whether [a petitioner] has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations."), certif. denied, 181 N.J. 546 (2004).
As further noted by Judge Pullen, defendant's claim of Perez's lack of preparedness for trial is unsupported by the record. Even accepting defendant's contention that he met his new attorney a week before trial, defendant presents no evidence that it made a difference in Perez's performance at trial. Perez never indicated he had insufficient time to prepare for trial and, to the contrary, he extensively cross-examined each witness, argued in favor of a judgment of acquittal and, as we commented in our opinion on direct appeal, "[i]n closing argument, [he] used Taylor's guilty plea and inability to identify defendant to defendant's advantage while also attacking Taylor's credibility." State v. Foat, supra, No. A-0679-06 (slip op. at 12). Defendant expressed no concern at trial, sentencing or re-sentencing about Perez's preparedness for trial, and in his PCR petition provides nothing more than a bald, generalized assertion.
The record amply supports Judge Pullen's conclusion that defendant failed to satisfy either Strickland/Fritz prong regarding the performance of suppression or trial counsel. Accordingly, an evidentiary hearing was not warranted.