NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-01-0011.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Catherine Healy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Fisher and Alvarez.
Defendant Hykeem Rose appeals from the November 18, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
A jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); two counts of third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts three and ten); two counts of second-degree possession of CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-5(a)(1) and 2C:35-7.1 (counts four and eleven); and one count of second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count nine). Defendant was acquitted of three counts of third-degree possession of CDS with intent to distribute within 1000 feet of school property and with intent to distribute within 500 feet of public property (counts five, six, and seven). We affirmed the judgment of conviction, remanding for resentence as to merger and the numbering of counts. State v. Rose, No. A-1048-06 (App. Div. Dec. 1, 2008). Defendant's petition for certification was denied by the Supreme Court. State v. Rose, 198 N.J. 314 (2009).
Upon remand, defendant, previously convicted of drug distribution and two other drug offenses in 1999, was sentenced on count nine to a mandatory extended term, N.J.S.A. 2C:43-6(f), of fifteen years imprisonment subject to seven years of parole ineligibility. A concurrent term of ten years was imposed on count eleven, subject to five years without parole. Counts eight and ten were merged into count nine on August 3, 2009.
The charges result from defendant's September 23, 2005 arrest, when he was observed by members of the Jersey City Police Department in an exchange they believed was a drug transaction. Defendant, the seller, stored his drugs, 118 vials and two baggies of cocaine and heroin, in a purple Crown Royal sack inside a lobby mailbox in an adjacent apartment building, located within 1000 feet of a nearby school and 500 feet from a public park.
During the trial, after the State rested, the trial judge explained to defendant on the record that if he elected not to testify, the jury could be instructed that they must not consider his silence in their deliberations. See Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2004). The judge also explained "ultimately the decision is not [counsel's], it's yours. . . . If he gives you advice, that's why we give you a lawyer, to give you advice. But that's all it is is advice. He cannot tell you you can't take the stand. It's your decision whether you do or do not testify. You now understand that should you testify the [S]tate has the right to introduce your prior criminal record before the jury as it might affect your credibility." Defendant responded that after discussing the issue with his attorney, he had decided not to testify. The judge asked him if that was his "own personal decision, not that of your lawyer" and defendant said, "it's mine." He also told the judge he wanted the jury instructed that they could not consider his election not to testify while deliberating.
Following our affirmance of his conviction, defendant filed a timely PCR petition alleging he received ineffective assistance of counsel because certain motions were not filed, including a motion to dismiss the indictment. He also asserted trial counsel would not let him testify despite his "desire to testify at trial and profess his innocence." In the certification he submitted in support of PCR, defendant stated that he did not know he could "go against" his attorney's advice, and was concerned about testifying in any event because his attorney had not adequately reviewed discovery with him or prepared for the case.
The PCR judge denied the petition, finding that defendant did not establish a prima facie case of ineffective assistance. He said, in pertinent part, that the failure to file a motion to dismiss the indictment was of no consequence because the fact the testimony was mainly hearsay was not a legally sufficient basis for dismissal. The court also found that defendant's claims that his will ...