On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1251.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Waugh, and St. John.
Defendant Frederick King appeals from the August 12, 2010 order of the Law Division dismissing his petition for post-conviction relief (PCR). We affirm in part, reverse in part, and remand to the Law Division for an evidentiary hearing.
We discern the following facts and procedural history from the record on appeal.
On the afternoon of April 19, 2007, Officers James Crecco and Eric Infantez of the Jersey City Police Department were conducting a surveillance on Tonnelle Avenue when Crecco spotted King, whom both Crecco and Infantez knew from previous encounters. King was looking inside the cars in a used car lot across the street from the officers. King left the lot as soon as he was approached by a salesperson.
The officers, with Crecco on foot and Infantez in the car, followed King. They observed him walk past the parking lot of an auto body shop, and then suddenly he "doubled back and ran right into the lot." He went directly to a gold Buick. King tried the Buick's door, which opened. He "climbed right into the car." Within seconds, King "ducked beneath the dashboard, and popped back up, started the car and put it into gear." Neither Crecco nor Infantez were able to get close enough to stop King, but they relayed the Buick's license plate and their observations to the police dispatcher.
The Buick was subsequently located on Orient Avenue, the street on which King resided. Sergeant Michael Kenny proceeded to King's home with other officers. When a woman opened the door, Kenny observed King inside the house, opening a back door. Kenny placed King under arrest. A set of keys to the Buick were found in King's pants pocket.
King was indicted and, following a jury trial in December 2007, convicted of theft by unlawful taking of an automobile, contrary to N.J.S.A. 2C:20-3, and burglary related to the theft, contrary to N.J.S.A. 2C:18-2. He was sentenced to an extended term of ten years on count one with five years of parole ineligibility, and five years on count two, with a two-and-one-half-years period of parole ineligibility, to run consecutive to the term on count one.
King raised three issues on direct appeal arguing that (1) the officers' testimony regarding their previous acquaintance with him left the jury with the inescapable conclusion that they followed him because he was a car thief, (2) the trial judge erroneously denied his request for an instruction on the lesser-included offense of joyriding, and (3) his sentence was excessive. We affirmed, State v. Frederick King, No. A-4654-07 (App. Div. Mar. 30, 2009), and the Supreme Court denied certification, 200 N.J. 477 (2009).
King filed his PCR petition in August 2010. He argued that his trial counsel was ineffective because he (1) failed to seek removal of a juror, who eventually became the jury foreman, after King had notified him that he knew the juror and they had had a dispute in the past, (2) failed to file a motion to suppress the car keys seized when he was arrested, (3) argued for a seven-year term based on his mistaken assumption that King's minimum possible term was five rather than three years, (4) failed to seek the criminal presiding judge's approval to proceed with plea negotiations when the prosecutor submitted a plea offer for the first time after the plea cut-off date, and (5) failed to interview the car lot's salesperson, whom King claimed could have supported his assertions that he was at the lot to attempt to trade in a car, and his wife, who would have said that she never consented to the search of their home, which would have supported the filing of the suppression motion.
On August 5, 2010, following oral argument the PCR judge, who had also been the trial judge, dismissed the PCR petition. The judge held that, because King had failed to establish a prima facie case of ineffective assistance of counsel, he was not entitled to an evidentiary hearing. The judge held that King's claim of ineffectiveness based on his counsel's failure to seek dismissal of the juror was barred because the contention could have been raised on direct appeal. In addition, the judge described the claim as legally and factually deficient because King failed to "identify any instance in the transcript of the jury selection process where he raises such conflict" and he "does not attempt to name this juror, instead referring to him only by number and position." The judge noted that King "remained silent about this allegation during the three-day trial" and never mentioned the alleged dispute with the juror in a letter he subsequently wrote to his trial attorney questioning his trial strategies.
The judge rejected King's claim that trial counsel should have filed a motion to suppress the car keys. He concluded that the search was incident to a lawful arrest, noting that the police had obtained an arrest warrant before they arrived at King's home.
With respect to the sentencing issue, the judge held that King's claim was procedurally barred because it had been raised on direct appeal. In addition, the judge concluded that it lacked merit because King was unable to show a reasonable probability that the outcome would have been different if counsel had not erred, relying on our determination on direct appeal that the error was not clearly capable of producing an unjust result.
The judge rejected King's claim concerning the failure to seek approval from the presiding criminal judge for a plea bargain. Although the judge acknowledged that the State had not provided a plea offer prior to the cutoff date, he determined that the subsequent plea offer had been "taken off the table," and that he had not approved any plea agreement because he had found no change in circumstances.
The judge also rejected King's claim that his trial counsel had failed to investigate the case adequately. The judge rejected King's "bald assertion" that he was present at the lot to trade in his vehicle, which "greatly contradict[ed]" the police reports and the trial witnesses. The judge also rejected King's claim that his wife did not consent to a police search, noting that King's wife had testified at trial and the jury found the police witnesses to be ...