STATE OF NEW JERSEY v. HYKEEM ROSE (2013)

Defendant Hykeem Rose appeals from the November 18, 2010 order of the Law Division denying his petition for post-conviction relief (PCR).  We affirm.¹

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 was overborne by his attorney was “squarely and conclusively refuted by the trial record.”

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

POINT I:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. TRIAL COUNSEL WAS REMISS BY FAILING TO MAKE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS IT CONSISTED VIRTUALLY ENTIRELY OF HEARSAY.

C. THE DEFENDANT WAS DENIED HIS RIGHT TO TESTIFY IN HIS OWN BEHALF AS A RESULT OF TRIAL COUNSEL'S ADVICE CONVINCING HIM NOT TO TESTIFY, DESPITE HIS DESIRE TO DO SO.

D. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING HIS PETITION WITHOUT AT LEAST AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS.

POINT II:

NEITHER RULE 3:22–4 NOR 3:22–5 PRECLUDED THE TRIAL COURT FROM ADJUDICATING ON ITS SUBSTANTIVE MERITS POST CONVICTION RELIEF COUNSEL'S CONTENTION THAT TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HIS FAILURE TO MAKE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS IT CONSISTED VIRTUALLY ENTIRELY OF HEARSAY.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to demonstrate not only the particular manner in which counsel's performance was deficient, but also to establish that the deficiency prejudiced his right to a fair trial.   See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987).   We are persuaded that the alleged deficiencies here clearly failed to meet either the performance or prejudice prongs of the Strickland test.

Motions to dismiss an indictment are not to be granted except on the plainest and clearest of grounds, unless the indictment is manifestly deficient or palpably defective.  State v. Hogan, 144 N.J. 216, 228–29 (1996).   Such plain and clear grounds do not include hearsay testimony.   A grand jury may issue an indictment wholly on hearsay, so long as the grand jury does not otherwise act in some improper manner.  State v. Ferrante, 111 N.J.Super. 299, 306 (App.Div.1970).  “ ‘[A]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial.’ ”  State v. Holsten, 223 N.J.Super. 578, 585 (App.Div.1988) (quoting State v. Schmidt, 213 N.J.Super. 576, 584 (App.Div.1986), rev'd on other grounds, 110 N.J. 258 (1988)).

Failure to make a motion that has no basis in law or fact, and thus no chance of success, is not a failure to adhere to professional standards.   Defendant has therefore on this point failed to establish that counsel's performance was deficient, or that the alleged deficiency prejudiced his right to a fair trial.

Defendant's separate claim that his will was overborne by his attorney as to his election not to testify, and his desire to testify hampered by trial counsel's alleged lack of preparedness, are not supported by the record.

The trial judge painstakingly reviewed defendant's election not to testify with him, advising him that the decision was his alone to make, not his attorney's, and that if he chose not to testify the jury would be instructed not to consider his silence in their deliberations.   In fact, when directly asked, defendant said that he and he alone made the choice.   Even if a factor in defendant's calculus was lack of confidence in his attorney, nonetheless he knowingly made the decision and is therefore bound by it.

Having failed to establish any grounds for PCR, much less a prima facie case, defendant was not entitled to an evidentiary hearing.  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

FOOTNOTES

FN1. The judgment of conviction provided in defendant's appendix was dated August 17, 2006, prior to our remand for the court to resentence defendant after clarification of merger issues and the extended-term sentence.   Since the proceedings were conducted on August 3, 2009, presumably a new judgment of conviction was prepared but was inadvertently omitted from the appendix..  FN1. The judgment of conviction provided in defendant's appendix was dated August 17, 2006, prior to our remand for the court to resentence defendant after clarification of merger issues and the extended-term sentence.   Since the proceedings were conducted on August 3, 2009, presumably a new judgment of conviction was prepared but was inadvertently omitted from the appendix.

PER CURIAM