STATE OF NEW JERSEY VS. YUSEF STEELE (09-05-0884, MIDDLESEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0352-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

YUSEF STEELE, a/k/a
YUSIF STEELE,

     Defendant-Appellant.
________________________

                   Submitted December 14, 2020  Decided December 31, 2020

                   Before Judges Sabatino and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 09-05-
                   0884.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kisha M. Hebbon, Designated Counsel, on
                   the brief).

                   Yolanda Ciccone, Middlesex County Prosecutor,
                   attorney for respondent (David M. Liston, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Yusef Steele appeals the trial court's denial of his petition for

post-conviction relief ("PCR") arising out of Middlesex County Indictment No.

09-05-0884. We consider this appeal back-to-back with A-0353-18, which

concerns the trial court's denial of a PCR petition stemming from an unrelated

indictment. For the reasons that follow, we affirm.

      The facts were described in our previous opinion on direct appeal from

defendant's conviction in this case. State v. Steele, No. A-4044-11 (App. Div.

Mar. 24, 2015) (slip opinion).      Succinctly stated, New Brunswick police

observed defendant on April 10, 2009 in an area known for drug trafficking.

They saw defendant and another man huddled close, and defendant appeared to

be counting something. The men separated when they saw the officers. As

defendant walked away, one of the officers saw him drop a bundle of heroin on

the ground. The police apprehended him and found on his person seven bags of

marijuana plus $254 in cash. The bags of heroin were retrieved from the ground

close by.

      According to the police, the seized marijuana and heroin were placed in

an evidence bag and secured at the police station. Samples of the drugs were

tested at the State Police laboratory and confirmed by the chemist to be heroin

and marijuana. The police questioned defendant about the seized drugs. He


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admitted the marijuana was for personal use but refused to concede that the

heroin was his.

      The indictment charged defendant in five counts with multiple drug

offenses concerning the heroin and marijuana: count one, third-degree

possession of heroin, N.J.S.A. 2C:35-10(a)(1); count two, third-degree

possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.

2C:35-5(b)(3); count three, fourth-degree possession with intent to distribute

marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12); and counts four

and five, third-degree possession with intent to distribute heroin and marijuana

within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a).

      Defendant's pretrial motion to suppress the seized drugs and to dismiss

the indictment failed.

      The case was tried twice. The first trial in May 2011 resulted in a mistrial

because an empaneled juror had passed by while defendant was being arrested.

At the second trial in November 2011, the jury found defendant guilty of all five

counts.

      The trial court sentenced defendant on count four to a mandatory extended

term of seven years with a three-year parole disqualifier, to be served

consecutively to the sentence imposed on Indictment No. 08-10-1809. The other

counts either merged or resulted in concurrent terms.

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        On direct appeal in 2013, this court upheld defendant's convictions on

certain counts but vacated the convictions on two counts of the marijuana

offenses because the court had failed to charge lesser-included offenses. We

reserved defendant's pro se claims of ineffective assistance of counsel for a

future PCR petition. The Supreme Court denied certification. State v. Steele,

223 N.J. 163 (2015).

        On remand, the trial court dismissed those two counts and resentenced

defendant to a three-year prison term with a three-year parole disqualifier on the

surviving counts.

        Thereafter, on May 24, 2018, the trial court 1 denied defendant's PCR

petition without an evidentiary hearing. That same day, the court likewise

denied defendant's petition for PCR arising from an unrelated indictment, which

is the subject of the appeal in A-0353-18.

        In the present appeal, defendant argues the following:

              POINT I

              THE TRIAL COURT ERRED IN DENYING
              DEFENDANT'S     PETITION    FOR    POST-
              CONVICTION RELIEF WITHOUT AFFORDING
              HIM   AN    EVIDENTIARY    HEARING   TO
              DETERMINE THE MERITS OF HIS CONTENTION
              THAT HE WAS DENIED THE RIGHT TO THE
              EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

1
    The PCR judge had not presided over the trials.
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                                         4
            A. THE PREVAILING LEGAL PRINCIPLES
            REGARDING    CLAIMS OF  INEFFECTIVE
            ASSISTANCE OF COUNSEL, EVIDENTIARY
            HEARINGS AND PETITIONS FOR POST
            CONVICTION RELIEF.

            B. TRIAL COUNSEL RENDERED INEFFECTIVE
            LEGAL REPRESENTATION BY VIRTUE OF HIS
            FAILURE TO CONSULT WITH DEFENDANT
            PRIOR TO STIPULATING TO THE CHAIN OF
            CUSTODY AND LAB REPORT REGARDING THE
            DRUGS IN QUESTION.

            C. DEFENDANT IS ENTITLED TO A REMAND TO
            THE TRIAL COURT TO AFFORD HIM AN
            EVIDENTIARY HEARING TO DETERMINE THE
            MERITS OF HIS CONTENTION THAT HE WAS
            DENIED THE EFFECTIVE ASSISTANCE OF TRIAL
            COUNSEL.

Having considered these arguments, we affirm, substantially for the sound

reasons articulated in the PCR judge's oral decision.

      The applicable law is well established and requires little elaboration. To

establish a deprivation of the Sixth Amendment right to the effective assistance

of counsel, a convicted defendant must satisfy the two-part test enunciated in

Strickland v. Washington, 466 U.S. 668 (1984), by demonstrating that: (1)

counsel's performance was deficient, and (2) the deficient performance actually

prejudiced the accused's defense. Id. at 687; see also State v. Fritz, 105 N.J. 42,

58 (1987) (adopting the Strickland two-part test in New Jersey).            When


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reviewing such claims, courts apply a strong presumption that defense counsel

"rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment."           Strickland, 466 U.S. at 690.

"[C]omplaints 'merely of matters of trial strategy' will not serve to ground a

constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (citations omitted);

see also State v. Perry, 124 N.J. 128, 153 (1991).

      Defendant's PCR petition hinges on an argument that his attorney at the

second trial was deficient because that attorney agreed with the prosecutor to

stipulate to the chain of custody of the drugs and the associated lab report. We

disagree.

      The record shows that the State presented the arresting officers and a State

forensic scientist at the first trial to establish the chain of custody and they were

cross-examined. The stipulation, which defendant contends his attorney made

over his strenuous opposition, relieved the State of calling these and other chain

of custody witnesses at the second trial.

      Defendant testified in his own defense at the second trial and asserted that

the heroin he was shown at the police station when the officers interrogated him

was different from the heroin the prosecutors presented at trial.          However,

defendant admitted to the marijuana possession and did not testify that the



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marijuana presented at court was not the same marijuana taken from his person

or shown to him after his arrest.

      Defendant fails to show there was clear prejudice arising from his

counsel's stipulation about the chain of custody. Defendant has proffered no

proof of evidence-tampering or a break in the chain of the drugs' custody, other

than his testimony that the drugs presented in court looked different from the

drugs he was shown at the police station. That does not undermine the State's

contention that the drugs admitted in evidence were the drugs he possessed at

the scene. There is also not a shred of proof that the laboratory analysis of the

drugs was scientifically flawed.

      The stipulation avoided the specter of the State parading before the jury

chain-of-custody witnesses who could have bolstered the overall impressiveness

of the State's investigation. The stipulation is within the zone of strategic

choices that a criminal trial attorney has great latitude to make. Perry, 124 N.J.

at 153.

      There was no need for an evidentiary hearing on the PCR petition, as

defendant failed to present a prima facie case for redress under the Strickland

standards. State v. Preciose, 129 N.J. 451, 462-63 (1992) (requiring a prima

facie demonstration to warrant such a hearing).

      Affirmed.

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