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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5051-06T45051-06T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. AYYUB HALL, Defendant-Appellant. __________________________

Submitted November 18, 2008 - Decided Before Judges Wefing and LeWinn. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 96-01-033 and 96-01-034. Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Ayyub Hall appeals from the trial court order of March 16, 2007 denying his petition for post-conviction relief (PCR). We affirm. In 1996, defendant was indicted for first-degree murder, 165 N.J. 607 (2000). Defendant filed his PCR petition on April 11, 2001, alleging ineffective assistance of trial counsel and excessive sentence. Counsel was assigned and filed a supplemental petition and brief on the ineffective assistance of counsel
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claims. Defendant claimed ineffective assistance of trial counsel for (1) failure to investigate the underlying shooting incident and to have defendant examined to determine if he was suffering from post-traumatic stress disorder on the date of the offense; (2) failure to present evidence that defendant had been shot several days prior to the offense date and required medical treatment; and (3) failure to present the sentencing court with mitigating factors on defendant's behalf. Assigned PCR counsel appended a report from board-certified clinical neuropsychologist, Joel E. Morgan, who evaluated defendant on August 11, 2006. Based upon that evaluation, psychological testing and review of certain documents, Morgan concluded that defendant showed "the presence of a lingering Posttraumatic Stress Disorder of moderately severe proportions." Morgan noted that, as of the time of his report, defendant had "spent over ten years in . . . State Prison. His overall prison adjustment has been quite positive and he functions well in prison." He noted that the symptoms reported in this report are not associated with current factors in his social life around the prison environment, but are rather associated with factors emanating from that period of time in 1995 when he was shot at. That period of his life was emotionally traumatic, and occurred on top of a personal-social history replete with emotional turmoil at home and fearfulness emanating from the street. Therefore, Morgan concluded "within a reasonable degree of psychological certainty[,]" that defendant suffered from a "chronic Posttraumatic Stress Disorder of moderately-severe magnitude, originally generated in 1995 by shooting events in [defendant's] life." His report continued: It appears reasonable then to consider what might have happened had these issues and factors been raised during [defendant's] sentencing. Indeed, it appears likely that he was functioning within a context of diminished mental capacity at the time that the inadvertent shooting of a bystander took place. This diminished mental capacity was a clear result of [defendant] having been shot at himself on two occasions, one of which was successful. Driven by fear of the environment, he acquired a gun for self-protection. He did not acquire with a motive in mind. Thus, it is clear that [defendant] was likely operating from within a context of diminished mental capacity. On March 19, 2007, Judge John F. Malone heard argument on defendant's PCR petition. At the conclusion of argument, the judge denied the petition for the following reasons: The . . . defendant in this post-conviction relief petition argues ineffective assistance of counsel, and sets forth potentially two reasons that counsel was deficient. That . . . counsel failed to present evidence that the defendant had been shot approximately a week before the incident, which . . . gave rise to his indictment. And that counsel failed to have the defendant evaluated to determine if he suffered from a psychological disorder which may have been then considered at the time of this sentence[,] . . . giving rise to a mitigating factor that may have resulted in a reduced sentence. To be granted an evidentiary hearing on a post-conviction relief, . . . at this stage the
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[defendant] must demonstrate, at least a prima facie showing under the STRICKLAND standard, which is applicable in New Jersey, that counsel's performance was deficient. That is that counsel made errors that were so serious that he was, in effect, not functioning as counsel. Secondly, the prima facie showing must be that there is a reasonable probability that, but for those errors, the result . . . would have been different. The Court, after careful review of the records submitted in connection with this matter, concludes that the . . . defendant has failed to demonstrate that counsel was deficient . . . to such an extent that he was failing to act as counsel as required by the Sixth Amendment of the Constitution. What happened here is that counsel negotiated a plea, a plea in which under the circumstances, and given the original charges in this case, a count of murder, and two counts of attempted murder which may have resulted in the defendant's incarceration for life, resulted in a sentence of 35 years to State prison with 17 and a half years of parole ineligibility. It is true that counsel did not have any psychological evaluation done of the defendant. It is . . . also true that counsel did inform the Court that the defendant had been himself the victim of a crime, a shooting, and that he was in possession of a weapon that he acquired for purposes of protecting himself. The . . . trial judge in this case may have deviated from the negotiated plea, but chose not to. . . . [T]he trial judge gave the bargained for sentence, and that sentence was affirmed by the Appellate Division. The defense relies upon the two Appellate Division cases which counsel alluded a few moments ago. In STATE VS. HINES, 303 N.J. Super. 311, the Appellate Division said it was improper to prevent a defendant from offering expert testimony of post-traumatic stress disorder. In STATE VS. NATALUK, 316 N.J. Super. 336, the Appellate Division said that evidence that was presented during the course of the trial in which the defendant offered testimony of his reduced cognitive capacity to form the mental state necessary for the commission of the crime, . . . should have reasonably been considered at the time of sentence. Here the defendant never asserted, and still does not assert, that he lacked the mental capacity to form the mental state necessary for the commission of the crime. He plead guilty, he has not deviated from that plea, he is not seeking to withdraw the plea at this stage, he only objects to the length of the sentence. . . . [D]efendant asserts that he was under stress at the time of the crime, but does not indicate that that prevented him from understanding what he was . . . doing and appreciating the nature of his act. In short, defendant plead guilty to . . . crimes, and received the sentence which he bargained for. A very favorable sentence under all the circumstances, and a sentence affirmed by the Appellate Division. The record does contain evidence that the Court was advised of the status of . . . [defendant], in fact, as I said that he had been a crime victim, and was so concerned of his own well being that he had acquired a gun for protection. The totality of the circumstances before the Court did not suggest that . . . trial counsel was acting in a ma[nn]er that was so deficient that [defendant] was deprived of the benefit of the right to counsel required by the Constitution. He understood what he had done, . . . he participated in a plea, and willingly acknowledged his participation in the crime, and received the sentence for which he bargained. [I]t is the Court's determination that the first prong of the STRICKLAND test has not been satisfied in connection with this matter. Accordingly, this post-conviction relief petition is denied.

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On appeal, defendant presents the following arguments for our consideration: POINT 1 THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF. POINT 2 THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF AND THE MATTER MUST BE REMANDED FOR ARGUMENT ON DEFENDANT'S MOTION TO WITHDRAW THE PLEA. Defendant also appends a certification, dated December 16, 2007, directing his appellate counsel to move before us to withdraw "the plea upon which [he] was convicted." Appellate counsel points to that certification as evidence that defendant "was denied the effective assistance of counsel on the within petition." We note, at the outset, that defendant does not address Judge Malone's statement of reasons for denying his petition for PCR. Rather, defendant simply argues that the judge erred in denying him a plenary hearing and that PCR counsel was ineffective in failing to press his request to withdraw his guilty plea below. Having reviewed the record in light of the arguments raised and the pertinent law, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Malone in his decision from the bench on March 19, 2007. We add only the following brief comments. A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid. The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed.2d 203, 209-10 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed.2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not

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have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Here, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. Notwithstanding defendant's claim that he suffered from post-traumatic stress disorder on the date of the offense, and Morgan's opinion that, "[d]riven by fear of the environment, [defendant] acquired a gun for self-protection[,]" we note that, at his plea, defendant acknowledged that none of the other individuals had any sort of weapon at the time he fired his nine-millimeter gun at them. Regarding his ineffective assistance of PCR counsel claim, premised upon counsel's failure to press his request to withdraw his guilty plea, defendant's own PCR petition fails to mention that issue. Moreover, at the pre-sentence hearing on defendant's motion to withdraw his plea, defendant was offered the opportunity to "say for the record" anything he thought had been "ignored" at the time of the plea. Defendant made no mention of any "diminished capacity" or other psychological claim at that time. Affirmed. (continued) (continued) 12 A-5051-06T4 February 4, 2009 0x01 graphic

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