STATE OF NEW JERSEY VS. JAMES H. KIM, JR. (008-01-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1723-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES H. KIM, JR.,

Defendant-Appellant.
_________________________

Argued April 29, 2019 – Decided May 15, 2019

Before Judges Fasciale and Rose.

On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Municipal Appeal No. 008-
01-16.

Nabil N. Kassem argued the cause for appellant
(Kassem & Associates, PC, attorneys; Nabil N. Kassem
and Dominique J. Carroll, on the brief).

Tom Dominic Osadnik, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Dennis Calo, Acting Bergen County
Prosecutor, attorney; Tom Dominic Osadnik, of
counsel and on the brief).
PER CURIAM

Defendant James H. Kim, Jr. appeals a November 6, 2017 order denying

his motion for reconsideration. In 2012, in Elmwood Park Municipal Court,

defendant pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50.

Defendant's license was suspended for three months and he was ordered to pay

$716 in penalties and fines. In 2016, defendant filed a petition for post-

conviction relief (PCR), which the municipal judge denied. Defendant appealed

the denial to the Law Division. Following oral argument, Judge Gary Wilcox

(the judge) denied defendant's petition for PCR and issued a well-reasoned

written opinion. Defendant filed a motion for reconsideration, which the judge

also denied. We review the order denying reconsideration.

On appeal, defendant argues:

POINT I

AS A MATTER OF LAW, THE LOWER COURT
FAILED TO BASE ITS FINDINGS OF FACT ON
THE EVIDENCE PRESENTED.

POINT II

AS A MATTER OF LAW[,] THE WARRANTLESS
SEARCH AND SEIZURE OF [DEFENDANT] WAS
THE RESULT OF AN UNCONSTITUTIONAL AND
UNAUTHORIZED BOROUGH OF ELMWOOD
PARK POLICE DEPARTMENT ENFORCED DWI
CHECKPOINT ON JUNE 9, 2012. ACCORDINGLY,

A-1723-17T4
2
ALL EVIDENCE RESULTING FROM THAT
UNLAWFUL STOP, ARE FRUITS FROM THE
POISONOUS TREE THEREBY REQUIRING
REVERSAL OF THE LOWER COURT'S DECISION.

POINT III

AS A MATTER OF LAW[,] THE LAW DIVISION
ERRONEOUSLY DENIED [DEFENDANT]'S
PETITION FOR [PCR] RESULTING FROM THE
DEPRIVATION OF HIS FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO THE EFFECTIVE
ASSISTANCE OF COUNSEL REQUIRING
REVERSAL OF THE LOWER COURT'S DECISION.

A. As A Matter Of Law, [Defendant]'s
Former Counsel Was Ineffective As She
Failed To Investigate Any Facts And/Or
Law Of The Case Before Advising
[Defendant] To Plead Guilty.

B. As A Matter Of Law, [Defendant]'s
Former Counsel Was Ineffective As She
Failed To Request And/Or Obtain All
Discovery Necessary To Challenge The
Unconstitutional And Unauthorized
Borough Of Elmwood Park Police
Department Enforced DWI Checkpoint On
June 9, 2012. Accordingly, Former
Counsel Was Not Capable Of And Failed
To Advise [Defendant] As To Any
Defenses To The Charges.

C. As A Matter Of Law, [Defendant]'s
Former Counsel Was Ineffective As She
Failed To File Any Motions, Including
Without Limitation, A Motion To Suppress
All Evidence Obtained During The

A-1723-17T4
3
 Warrantless Search And Seizure Of
[Defendant] At The Unconstitutional And
Unauthorized Borough Of Elmwood Park
Police Department Enforced DWI
Checkpoint On June 9, 2012.

D. As A Matter Of Law, [Defendant]'s
Former Counsel Was Ineffective As She
Failed To Inform Him Of Consequences Of
His Guilty Plea.

E. As A Matter Of Law, [Defendant]'s
Former Counsel Was Ineffective As She
Failed To Challenge The Lack Of A
Factual Basis To Establish His Guilty Plea.

POINT IV

AS A MATTER OF LAW, THE LAW DIVISION
ERRONEOUSLY DETERMINED THAT
[DEFENDANT] WAS PROCEDURALLY BARRED
FROM RAISING A FOURTH AMENDMENT
CHALLENGE TO THE UNCONSTITUTIONAL AND
UNAUTHORIZED BOROUGH OF ELMWOOD
PARK POLICE DEPARTMENT ENFORCED DWI
CHECKPOINT ON JUNE 9, 2012 IN HIS [PCR]
PETITION.

POINT V

AS A MATTER OF LAW, [DEFENDANT]'S
FORMER COUNSEL WAS INEFFECTIVE AS
CUMULATIVELY HER ERRORS CONSTITUTE
INEFFECTIVE ASSISTANCE OF COUNSEL.

A-1723-17T4
4
 POINT VI

AS A MATTER OF LAW, THE LOWER COURT
ERRONEOUSLY DENIED [DEFENDANT]'S [PCR]
PETITION AS HIS PLEA AND SENTENCE
SHOULD HAVE BEEN VACATED DUE TO THE
FACT THAT THE NECESSARY ELEMENTS
REQUIRED TO ESTABLISH, AMONG OTHER
THINGS, A DEFENDANT'S KNOWING,
VOLUNTARY, FACTUALLY ACCURATE PLEA
TO THE SUBJECT DWI CHARGE, WERE NOT SET
FORTH.

POINT VII

AS A MATTER OF LAW, THE LOWER COURT
ERRONEOUSLY DENIED [DEFENDANT]'S
REQUEST TO WITHDRAW HIS GUILTY PLEA
DESPITE SATISFYING THE APPLICABLE
FACTORS SET FORTH IN STATE V. SLATER.[1]

POINT VIII

AS A MATTER OF LAW, THE LAW DIVISION
ERRONEOUSLY DENIED [DEFENDANT]'S
MOTION FOR RECONSIDERATION OF ITS
ORDER.

Having considered these arguments in light of the record and applicable legal

standards, we affirm.

1
198 N.J. 145 (2009).
A-1723-17T4
5
 I.

In June 2012, defendant was arrested at a DWI checkpoint in Elmwood

Park, enforced by the Elmwood Park Police Department (EPPD). Defendant,

who was twenty years old at the time, received summonses for DWI, N.J.S.A.

39:4-50; careless driving, N.J.S.A. 39:4-97; and possession of an open alcoholic

beverage container in a motor vehicle, N.J.S.A. 39:4-51B.

In August 2012, defendant pled guilty to DWI, and the other two

summonses were dismissed pursuant to the parties' plea agreement. The

municipal judge accepted defendant's guilty plea and sentenced defendant as a

first-time offender with a blood alcohol content in excess of .08%, but less than

.10%. Defendant did not directly appeal his conviction, but in November 2016,

defendant's new counsel (different from his plea counsel) filed a petition for

PCR in the Elmwood Park Municipal Court, pursuant to Rule 7:10-2(a).

Defendant asserted that he was not "under the influence of alcohol at any time

prior to the search and seizure of [his] vehicle and/or person" and "but for [plea

counsel]'s ineffective assistance of counsel [he] would not have foregone [his]

constitutional right to trial." Following oral argument, the municipal judge

denied defendant's PCR petition. Subsequently, defendant filed an appeal to the

Law Division.

A-1723-17T4
6
 In June 2017, Judge Wilcox conducted oral argument. Defendant

reiterated the arguments made before the municipal judge. On June 30, 2017,

the judge issued an order and comprehensive seventeen-page written decision

denying defendant's petition for PCR. Defendant filed a motion for

reconsideration. The judge conducted oral argument in September 2017 on the

reconsideration motion. On November 6, 2017, the judge issued an order and

five-page written decision denying defendant's motion for reconsideration. This

appeal followed.

II.

We begin by noting that most of defendant's claims before the judge in the

Law Division and before us on appeal are not properly raised in his PCR petition

because they could have been – but were not – raised on direct appeal. It is well-

established that PCR is intended to permit a defendant to challenge the legality

of a conviction on a ground which could not have been raised on direct appeal.

State v. Afanador, 151 N.J. 41, 49 (1997). A PCR petition is a collateral attack

on a judgment rendered in a criminal proceeding and is the exclusive means of

challenging such a judgment. R. 3:22-3; see also State v. Preciose, 129 N.J.

A-1723-17T4
7
451, 459 (1992). As such, we decline to address these claims because they

should have been raised on direct appeal.2

III.

Next, we reject defendant's claim that his (now-deceased) plea counsel

rendered ineffective assistance, which is properly raised in his PCR petition.

Defendant contends that his plea counsel rendered ineffective assistance in five

ways: she failed to (1) investigate any facts and/or law of the case before

advising him to plead guilty; (2) request or obtain all necessary discovery and

2
These claims include that the municipal judge made erroneous evidentiary
rulings, the constitutionality of the DWI checkpoint, and validity of his guilty
plea. At oral argument, defense counsel specifically stressed the
unconstitutionality of the DWI checkpoint, arguing that the memorandum signed
by the county prosecutor authorized the stop to be conducted on June 8 or June
10 – not June 9, the date defendant was stopped. This argument is unavailing
for two reasons. First, defendant should have raised this argument either before
pleading guilty or on direct appeal. That is, not when appealing a motion to
reconsider the denial of a petition for PCR. See e.g., State v. Knight, 183 N.J.
449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997))
("Generally, a defendant who pleads guilty is prohibited from raising, on appeal,
the contention that the State violated his constitutional rights prior to the plea.").
Second, even if we were to address the argument on the merits, we conclude that
the checkpoint was constitutional. The county prosecutor's execution of the
memorandum authorizing the stop is not dispositive. The county prosecutor's
office's approval would not necessarily make a checkpoint constitutional, just as
the lack of approval would not necessarily make a checkpoint unconstitutional.
Instead, the court must consider thirteen factors when determining the
constitutionality of a checkpoint or roadblock. State v. Kirk, 202 N.J. Super.
28, 46-47 (App. Div. 1985).
A-1723-17T4
8
thus failed to advise defendant of possible defenses; (3) file any motions; (4)

inform him of consequences of his guilty plea; and (5) challenge the lack of

factual basis to establish his guilty plea.

"The Sixth Amendment guarantees a defendant the effective assistance of

counsel at 'critical stages of a criminal proceeding,' including when he enters a

guilty plea." Lee v. United States, 582 U.S. ___, 137 S. Ct. 1958, 1964 (2017)

(citing Lafler v. Cooper, 566 U.S. 156, 165 (2012); Hill v. Lockhart, 474 U.S.

52, 58-59 (1985)). For a defendant to obtain relief based on ineffective

assistance grounds, he is obliged to show not only the particular manner in which

counsel's performance was deficient, but also that the deficiency prejudiced his

right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord

State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong of the two-prong

Strickland test, the defendant must demonstrate that "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Under the

second prong, the defendant must show "that counsel's errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid.

That is, "there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at 694.

A-1723-17T4
9
 As to the second prong of the Strickland test, in the case of a guilty plea,

the court considers "whether the defendant was prejudiced by the 'denial of the

entire judicial proceeding . . . to which he had a right.'" Lee, 137 S. Ct. at 1965

(alteration in original) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)).

When a defendant claims that counsel was deficient by causing him to accept a

plea, "the defendant can show prejudice by demonstrating a 'reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and

would have insisted on going to trial.'" Ibid. (quoting Hill, 474 U.S. at 59); see

also State v. DiFrisco, 137 N.J. 434, 457 (1994). Moreover, a defendant must

show that a decision to reject the plea offer "would have been rational under the

circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). That is, "can

defendant show that, had he been properly advised, it would have been rational

for him to decline the plea offer and insist on going to trial and, in fact, that he

probably would have done so?" State v. Maldon, 422 N.J. Super. 475, 486 (App.

Div. 2011) (citing Padilla, 559 U.S. at 372).

In the Law Division, the judge found that defendant failed to prove either

prong under Strickland. The judge considered the evidence against defendant –

his blood alcohol content of .09, his admission to police that he had seven drin ks

over a period of two hours an hour before he was stopped, failed sobriety tests,

A-1723-17T4
10
and an open bottle of vodka in his vehicle. In light of the evidence, the judge

found that "a reasonable person would not have gone to trial." We agree.

Defendant's contention that his plea counsel did not effectively investigate

the facts and the law is belied by the record. Defendant's plea counsel requested

an adjournment because she had not yet received discovery. Approximately one

month later, defendant pled guilty to DWI. Pursuant to the negotiated plea

agreement, defendant pled guilty to the DWI charge, and the other two

summonses – careless driving and possession of an open container of alcohol –

were dismissed. Thus, defendant's plea counsel was effective – two of the three

summonses were dismissed. Defendant has not sufficiently demonstrated how

his plea counsel's performance was deficient or what further investigation would

have revealed regarding potential defenses; particularly in light of the evidence

against him, such as his blood alcohol level and admission to consuming seven

drinks.

Moreover, defendant's claim that his guilty plea was not entered

voluntarily and knowingly is similarly belied by the record. During the colloquy

between defendant and the municipal judge, defendant acknowledged the effect

of pleading guilty and the rights he was giving up. He stated that he had enough

time to discuss the matter with his attorney and that she had answered all of his

A-1723-17T4
11
questions. Defendant further stated that he was satisfied with the services

rendered by his attorney. Thus, defendant has failed to provide any evidence to

support his contentions. Defendant's bald assertions are insufficient to establish

a prima facie claim of ineffective assistance. See State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999).

Furthermore, defendant also argues that there was insufficient credible

evidence in the record to factually support defendant's conviction under N.J.S.A.

39:4-50 because "the record is devoid of any credible evidence that [defendant]'s

ability to operate a motor vehicle safely was in anyway impaired during the

morning in question." Defendant misses the point. N.J.S.A. 39:4-50 does not

require that the State prove that defendant was impaired in order to sustain a

conviction. Rather, the statute provides, "a person who operates a motor vehicle

while under the influence of intoxicating liquor, narcotic, hallucinogenic or

habit-producing drug, or operates a motor vehicle with a blood alcohol

concentration of 0.08% or more by weight of alcohol in the defendant’s blood

. . . " is guilty of DWI. N.J.S.A. 39:4-50(a). Defendant's blood alcohol level

was .09. Defendant admitted to this during the plea colloquy, in which he also

admitted to drinking "a couple of beers." Thus, defendant has failed to offer any

evidence as to how his plea counsel was ineffective, or how her performance

A-1723-17T4
12
prejudiced him. And defendant's PCR petition does not create a factual dispute

that compels an evidentiary hearing. See State v. Blake, 444 N.J. Super. 285,

299 (App. Div. 2016) (noting that a "[d]efendant may not create a genuine issue

of fact, warranting an evidentiary hearing, by contradicting his prior statements

without explanation").

Next, defendant contends that his plea counsel was ineffective because

she did not file a motion to suppress evidence obtained from the DWI

checkpoint. The failure to file a suppression motion is not a circumstance in

which prejudice is presumed under the second prong of Strickland. State v.

Fisher, 156 N.J. 494, 500-01 (1998). "[W]hen counsel fails to file a suppression

motion, the defendant not only must satisfy both parts of the Strickland test but

also must prove that his Fourth Amendment claim is meritorious." Id. at 501

(citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Moreover, "[i]n an

ineffective assistance claim based on failure to file a suppression motion, the

prejudice prong requires a showing that the motion would have been successful."

State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003) (citing Fisher, 156

N.J. at 501).

Here, defendant has failed to show that the motion would have been

successful. Defendant asserts that the checkpoint was not authorized for June

A-1723-17T4
13
9, the date of the incident, and that defendant's plea counsel should have known

that based on the last page of the memorandum signed by the county prosecutor

authorizing the checkpoint. But on the first page of the complete six-page

memorandum, it explicitly states that the checkpoint would begin on June 9 at

midnight and end at 4:00 a.m. Notably, even though PCR counsel claims that

defendant only received the last page of the memorandum, which only states

that the checkpoint would be June 10 or June 8, it is clear from the top of the

page that it was a continuation from a previous page. At the top of the page,

there are statistics – the number of summonses issued, the number of DWI

arrests, and the number of criminal complaints signed – from a prior DWI

checkpoint. This suggests that it was clear that there was a previous page to the

document. The rest of the memorandum – the first five pages – were needed to

put the last page in context, and to make the record complete. In sum, defendant

has failed to prove that the motion to suppress would have been successful, and

thus, his claim of ineffective assistance on this ground fails.

Furthermore, defendant claims that his plea counsel was ineffective

because she "misinformed" defendant of the consequences of pleading guilty.

Defendant's contention is belied by the record. At the plea hearing, defendant's

plea counsel informed the court that she advised defendant of penalties for DWI,

A-1723-17T4
14
including enhanced penalties for a second and third conviction. After imposing

sentence, the judge also informed defendant of the penalties for a subsequent

DWI conviction. At the plea hearing, defendant stated that he was "freely and

voluntarily" entering a guilty plea. Accordingly, defendant has failed to

demonstrate how plea counsel was deficient to establish a prima facie claim of

ineffective assistance.

Lastly, defendant contends the factual basis for his guilty plea was

"constitutionally inadequate." Defendant asserts that he never acknowledged

that he was impaired to operate a motor vehicle, and he did not stipulate that the

officer who administered the breathalyzer was certified or that the machine was

properly functioning. Again, defendant argues that his plea counsel was

ineffective because she failed to advise defendant of his right to retain a DWI

expert to challenge the results of the breathalyzer. Defendant's arguments are

unavailing.

During a plea colloquy, "[t]he factual foundation may take one of two

forms; defendant may either explicitly admit guilt with respect to the elements

or may 'acknowledge[] . . . facts constituting the essential elements of the

crime.'" State v. Campfield, 213 N.J. 218, 231 (2013) (alterations in original)

(quoting State v. Sainz, 107 N.J. 283, 293 (1987)).

A-1723-17T4
15
 At defendant's plea hearing, he was questioned by his plea counsel and the

municipal judge. Defendant's plea counsel elicited the following:

[Counsel]: [Defendant], on Saturday June 9th, 2012,
were you driving [in] the Borough of Elmwood Park on
Route 46?

[Defendant]: Yes.

[Counsel]: Okay. And was that approximately two
o'clock in the morning?

[Defendant]: Yes.

[Counsel]: Okay. Had you had anything to drink just
prior to driving the car?

[Defendant]: Yes.

[Counsel]: And what did you drink?

[Defendant]: I had a couple beers.

[Counsel]: Okay. And . . . did you go through a
checkpoint on Route 46 in Elmwood Park?

[Defendant]: Yes.

[Counsel]: And were you stopped?

[Defendant]: Yes.

[Counsel]: Okay. And were you tested by an officer?

[Defendant]: Yes.

A-1723-17T4
16
 [Counsel]: And . . . were you found to be under the
influence of . . . alcohol . . . ?

[Defendant]: Yes.

....

[Counsel]: What was the blood content? Was . . . it .09,
as I see here in the report?

[Defendant]: Yes.

The factual basis established the elements of the crime of DWI, N.J.S.A. 39:4 -

50. Accordingly, we conclude that defendant has failed to establish either prong

under Strickland.

To the extent that we have not addressed the parties' remaining arguments,

we conclude they lack sufficient merit to warrant discussion in this written

opinion. R. 2:11-3(e)(2).

Affirmed.

A-1723-17T4
17