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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2128-06T42238-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOWARD HAMILTON, a/k/a
ANTOINE HAMILTON,
Defendant-Appellant.
Submitted May 13, 2008 - Decided
Before Judges Cuff and Simonelli.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment
No. 02-03-0609.
Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho,
Designated Counsel, of counsel and on the brief).
Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari,
Assistant County Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Howard Hamilton appeals from the order of September 12, 2006, denying his petition for post-
conviction relief (PCR) without an evidentiary hearing.
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a2238-06.opn.html
On appeal, defendant raises the following contentions:
POINT I
THE PCR COURT REVERSIBLY ERRED IN FAILING TO GRANT HAMILTON'S POST-
CONVICTION RELIEF BASED UPON THE CLAIMS THAT HIS TRIAL COUNSEL RENDERED
INEFFECTIVE ASSISTANCE (1) IN FAILING TO BRING A MOTION TO SUPPRESS AS
EVIDENCE THE DRUGS ALLEGEDLY SEIZED FROM HIS PERSON; (2) IN FAILING TO
DISCOVER AND SUBPOENA FOR TRIAL THE VIDEO TAPE OF HAMILTON'S BOOKING AT
THE POLICE DEPARTMENT; (3) IN FAILING TO INVESTIGATE ANY STATEMENTS AS TO THE
RESULTS OF ANY SEARCH BY THE POLICE OFFICER WHO ACTUALLY SEARCHED HIM;
AND (4) IN PROVIDING HAMILTON WITH FALSE INFORMATION TO COERCE HIM TO
EXECUTE THE PLEA AGREEMENT.
POINT II
THE PCR COURT REVERSIBLY ERRED IN REJECTING HAMILTON'S PETITION FOR POST
CONVICTION RELIEF BECAUSE THE CUMULATIVE EFFECT OF HAMILTON'S GROUNDS
FOR POST-CONVICTION RELIEF WARRANTED SUCH RELIEF.
POINT III
HAMILTON WAS RENDERED INEFFECTIVE ASSISTANCE OF PCR COUNSEL WHO FAILED
TO BRIEF AND ARGUE HAMILTON'S CONTENTION THAT TRIAL COUNSEL RENDERED
INEFFECTIVE ASSISTANCE IN FAILING TO FILE AND ARGUE A MOTION TO SUPPRESS THE
DRUGS ASSERTEDLY SEIZED FROM HIM BY THE POLICE.
POINT IV
AT A MINIMUM, THE PCR COURT REVERSIBLY ERRED IN REJECTING HAMILTON'S
REQUEST FOR AN EVIDENTIARY HEARING ON THE ABOVE ISSUES BECAUSE HAMILTON
DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF HIS TRIAL
COUNSEL AND HIS PCR COUNSEL ON THOSE GROUNDS AS DISCRETE ITEMS AND IN
THEIR CUMULATIVE EFFECT.
POINT V
THE PCR COURT REVERSIBLY ERRED IN REJECTING HAMILTON'S REQUEST TO ATTEND
THE PCR HEARING.
We reject these contentions and affirm.
Defendant was charged with third degree possession of a controlled dangerous substance (CDS) (heroin), contrary
to 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the
defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419
(App. Div. 1991). The defendant is required to show: (1) "'that counsel's performance was deficient[,]'" and (2) "'that
the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984)).
Adequate assistance of counsel should be measured by a standard of "reasonable competence." Id. at 60.
That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as
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to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). Thus, the defendant "must show
that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068,
80 L. Ed. 2d at 698). "Reasonable probability" means "'a probability sufficient to undermine confidence in the
outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied
the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard
performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also
State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). When claiming trial
counsel inadequately investigated his or her case, the petitioner "must assert the facts that an investigation would
have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the
person making the certification." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must
demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing
the outcome of the trial.
Based upon our review of the record, we agree with Judge Connor that defendant failed to establish a prima facie
case of ineffective assistance of counsel. Except for his self-serving statements, defendant provided no evidence
justifying a suppression motion; he failed to provide certifications to demonstrate that there was discoverable
evidence prior to trial, including the existence of a videotape, that had the likelihood of successfully rebutting the
State's evidence; and he failed to provide any evidence that his plea was the result of his attorney's coercion and
misinformation.
Defendant also contends that Judge Connor erred in rejecting his request to attend the PCR hearing. This
contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add
the following comments.
Rule 3:22-10 only requires a defendant's presence in court "when oral testimony is adduced on a material issue of
fact within the defendant's personal knowledge." No testimony was adduced in this proceeding. Defendant was not
entitled to an evidentiary hearing because he did not establish a prima facie case of ineffective assistance of
counsel.
Affirmed.
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a2238-06.opn.html
Defendant had a lengthy criminal record dating to 1981, which included eight convictions for CDS-related crimes,
including distribution and possession with intent to distribute.
Defendant faced a fifteen-year prison term.
The police allegedly found seven packages of heroin in defendant's sock.
Defendant claims that trial counsel advised him that in order to stop the trial and obtain private counsel, defendant
had to plead guilty.
Defendant addressed this issue in his pro se submission.
(continued)
(continued)
9
A-2238-06T4
July 9, 2008
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