STATE OF NEW JERSEY v. NEWELL KNIGHT (2011)

Defendant Newell Knight appeals from an order entered by the Law Division on February 21, 2008, denying his petition for post-conviction relief (PCR).  We affirm.

This appeal arises from the following facts.   On August 9, 2003, defendant shot and killed Judith Gonzalez.   The following day, he fled the United States and returned to Jamaica, which is his native country.   On October 15, 2003, Jamaican authorities arrested defendant on a provisional warrant that had been issued the previous month by a Resident Magistrate for the Corporate Area. Defendant waived extradition and was returned to the United States, where he was arraigned on November 17, 2003.

Thereafter, defendant was charged under Passaic County Indictment No. 03-12-1123-I, with first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2) (count one);  second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count two);  and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count three).

On February 15, 2005, defendant pled guilty to count one, which was amended to charge first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a).   Thereafter, defendant filed a motion to withdraw his plea.   The trial court denied the motion on July 22, 2005.   The court then sentenced defendant to thirty years of incarceration and required defendant to serve 85% of that term, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).

Defendant appealed the July 22, 2005, judgment of conviction entered by the trial court.   Defendant argued that the trial court erred by denying his motion to withdraw his plea.   He additionally argued that his sentence was excessive.   We affirmed.  State v. Knight, No. A-1566-05 (App.Div. Aug. 24, 2006).   Defendant then sought review of our judgment by filing a petition for certification with the Supreme Court.   The Court denied the petition.  State v. Knight, 188 N.J. 579 (2006).

On January 2, 2007, defendant filed a pro se petition for PCR. Defendant alleged that:  1) he was unlawfully extradited;  2) the statement he gave to detectives from the Passaic County prosecutor's office was obtained in violation of his constitutional rights;  3) the State violated his rights under the Vienna Convention of Consular Relations (VCCR),¹ because he was not advised that he could contact the Jamaican consulate after his arrest;  and 4) he was denied the effective assistance of trial counsel.   The court assigned PCR counsel to represent defendant, and counsel filed a brief on defendant's behalf.

Judge Randolph M. Subryan considered defendant's petition on January 25, 2008, and thereafter filed a written opinion dated February 21, 2008, in which he concluded that:  1) defendant had been lawfully extradited;  2) defendant gave his statement to the detectives from the prosecutor's office after he knowingly and voluntarily waived his Miranda ² rights;  3) defendant was not prejudiced by the State's alleged failure to comply with the VCCR;  and 4) defendant was not denied the effective assistance of trial counsel.   The judge entered an order dated February 21, 2008, denying PCR.

On appeal, defendant raises the following arguments for our consideration:

POINT ONE

THE PCR COURT ERRED IN FINDING THAT THE VIOLATION OF DEFENDANT'S RIGHTS UNDER ARTICLE 36 OF THE VIENNA CONVENTION AND ARTICLE 16 OF THE UK BILATERAL CONSULAR TREATY DID NOT REQUIRE SUPPRESSION OF HIS STATEMENTS TO POLICE

A.  Introduction.

B. The Vienna Convention and Ineffective Assistance of Counsel.

C. The Lower Court's Analysis of the Vienna Convention Article 36 Error.

D. New Jersey Jurisprudence and the Privilege Against Self-Incrimination.

E. This Court should Apply The Procedural Position Set Forth by the Dissent in Sanchez-Llamas v. Oregon [,] [548 U.S. 331, 126 S.Ct. 2669, 165 L. Ed.2d 557 (2006) ]

POINT TWO

THE PCR COURT ERRED IN MAKING FACTUAL FINDINGS WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING

POINT THREE

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED (NOT PRESENTED BELOW)

POINT FOUR

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHEN COUNSEL SUBMITTED HIS CASE TO THE EXCESSIVE ORAL ARGUMENT CALENDAR INSTEAD OF THE REGULAR COURT CALENDAR

Having thoroughly reviewed the record before us, we conclude that defendant's arguments are without merit.   We accordingly affirm the order denying PCR substantially for the reasons stated by Judge Subryan in his written opinion dated February 21, 2008.   We add the following brief comments.

Defendant argues that the statement he gave to the detectives after his arrest in Jamaica should have been suppressed because, prior to giving the statement, he had not been informed of his right to communicate with the Jamaican consulate, as required by Article 36 of the VCCR. Defendant therefore contends that his conviction should be vacated and the matter remanded for further proceedings.   We disagree.

A violation of the notice provisions of the VCCR does not require suppression of a statement of a foreign national that is otherwise admissible as evidence in a criminal prosecution in this State.   Sanchez-Llamas, supra, 548 U.S. at 349-50, 126 S.Ct. at 2681-82, 165 L. Ed.2d at 578-79.   As we observed in State v. Cabrera, 387 N.J.Super.   81 (App.Div.2006):

Foreign nationals accused of crimes receive the protections accorded by the law of this state including that required by the federal constitution.   To the extent state courts may apply their own rules of law, the [VCCR], which provides only for notification to the foreign national of his right to consular notification of his detention, arrest, or imprisonment, presents no basis for either requiring the suppression of evidence for noncompliance, development of independent rules of law, or departure from the law as it now stands in New Jersey with respect to all accused offenders.

[Id. at 86.]

Nevertheless, a foreign national accused of a crime may raise a claim of a violation of Article 36 of the VCCR “ ‘as part of a broader challenge to the voluntariness of his statements to police.’ ”  Ibid. (quoting Sanchez-Llamas, supra, 548 U.S. at 350, 126 S.Ct. at 2682, 165 L. Ed.2d at 579).

In this matter, defendant signed Miranda rights waiver forms before he gave his statement to the detectives from the prosecutor's office.   There is nothing in the record indicating that defendant would not have signed those forms or given his statement if he had been informed that he could contact the Jamaican consulate.   We note that, at his arraignment on November 17, 2003, the judge informed defendant of his rights under the VCCR.

Furthermore, as the PCR court found, defendant has not established that he was prejudiced as a result of the alleged violation of the VCCR. The court stated that defendant did not claim that he would have contacted the consulate for assistance or that such assistance would have been provided if requested.   The court also found that defendant did not require consular assistance to understand the English language.   The record supports the court's findings.

Defendant additionally argues that he was denied the effective assistance of PCR and appellate counsel.   In order to prevail on such this claim, defendant must meet the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), which governs the consideration of ineffective- assistance-of-counsel claims asserted under the Sixth Amendment to the United States Constitution, and has been applied by our Supreme Court for consideration of such claims brought under the New Jersey Constitution, State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant therefore must show that his attorney's handling of the matter “fell below an objective standard of reasonableness.”  Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.   He also must show that there exists a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

Defendant argues that his attorney failed to advance all of his arguments in the PCR proceedings contrary to State v. Webster, 187 N.J. 254, 257-58 (2006), certif. denied, 200 N.J. 475 (2009), and State v. Rue, 175 N.J. 1, 18-19 (2002), certif. denied, 198 N.J. 311 (2009).   The record shows, however, that defendant's claims were presented to the PCR court for its consideration and properly rejected.   Furthermore, defendant has not shown that the PCR court would have decided the matter differently if PCR counsel had handled the matter as suggested by defendant.

Defendant additionally contends that he was denied the effective assistance of appellate counsel because his attorney agreed to have his direct appeal heard on the court's excess sentence calendar.   This claim also fails because defendant has not shown that the result of the appeal would have been different if it had been heard on our plenary calendar.

We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion.   R. 2:11-3(e)(2).

Affirmed.

FOOTNOTES

FN1. Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101..  FN1. Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101.

FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM