NOT FOR PUBLICATION WITHOUT THE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-4688-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALAMEEN F. ADAMS,
Defendant-Appellant.
_________________________________
Submitted June 4, 2018 – Decided June 15, 2018
Before Judges Sabatino and Firko.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 10-
07-1735.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, of counsel and on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jenny M. Hsu, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Alameen F. Adams appeals the trial court's February
14, 2017 order denying his motion for post-conviction relief
("PCR") without an evidentiary hearing. We affirm.
After a jury trial in 2011, defendant was found guilty of
murder, first-degree robbery, and other offenses. The court
sentenced him to a thirty-five-year custodial term on the murder
count with a thirty-year parole disqualifier, along with other
concurrent sentences. In March 2013, we issued an unpublished
opinion affirming defendant's convictions and sentence, rejecting
arguments different from the ones he now makes in the present PCR
appeal. State v. Adams, No. A-0727-11 (App. Div. Mar. 26, 2013).
The Supreme Court denied defendant's petition for certification.
State v. Adams, 216 N.J. 7 (2013).
As described in our prior opinion, this homicide concerned
the shooting of the victim, Ian Morris (also known as "Steve"),
in an apartment building in East Orange. The State's proofs showed
that defendant and two other individuals named Michael Potts and
Abdul Simpkins had been on the nearby street on March 24, 2010.
Potts was looking for someone to sell him marijuana. Simpkins, a
friend of Potts, suggested that he could ask his supplier, Morris,
who lived down the street, to sell Potts the drugs. Defendant
approached Simpkins and Potts and conversed with Simpkins out of
Potts' earshot.
Defendant, Simpkins, and Potts then went to Morris'
residence. A surveillance camera showed that defendant entered
the building with Morris at 5:47 p.m. and left the building nine
2 A-4688-16T2
minutes later at 5:56 p.m. Around 6:00 p.m., Morris was found
dead in the fifth-floor stairwell with a single gunshot wound to
his head. There were no eyewitnesses to the actual shooting,
although Potts described defendant's jacket as having a noticeable
bulge in the stomach area, as if he seemed to be trying to hide
something. No gun was ever recovered or any forensic evidence
tying defendant to the shooting.
On direct appeal, defendant argued that the jury was tainted
because they may have overheard defense counsel's discussion about
trial strategy in the courthouse hallway. He also argued that the
court should have charged the jury on the defense of voluntary
intoxication. We rejected both of those points. State v. Adams,
No. A-0727-11, slip op. at 5-11.
In his present PCR petition, defendant contends that his
trial attorney was ineffective in not arguing a theory of third-
party guilt. Defendant claims in this regard that his counsel
should have invoked the excited utterance hearsay exception,
N.J.R.E. 803(c)(2), to attempt to get admitted a statement that
the decedent allegedly made to his friend Kelly Weekes an
unspecified number of days before the shooting. In that statement,
the decedent, allegedly in an excited fashion, told Weekes that a
"Dominican" person had pulled a gun on him, that he was "pissed
off" that it had occurred, and that the Dominican would not get
3 A-4688-16T2
away with it. After conducting a Rule 104 hearing, the trial
judge decided this hearsay statement was too unreliable to be
presented to the jury.
After considering the arguments presented in defendant's PCR
petition, Judge Marysol Rosero rejected defendant's claims and
found no necessity for an evidentiary hearing. She concluded that
the excited utterance rule requires that the utterance be made
"without an opportunity to deliberate or fabricate." See N.J.R.E.
803(c)(2). Because of the unspecified time interval between the
statement and the operative events, Judge Rosero ruled that such
an argument for admissibility, even if it had been made, would
have been unavailing. Judge Rosero also agreed with the trial
judge that, even if the hearsay problem somehow could be
surmounted, the alleged statement was not reliable. Defendant now
contests the judge's analysis.
On appeal, defendant raises the following sole point for our
consideration:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
ESTABLISH THIRD-PARTY GUILT PURSUANT TO THE
EXCITED UTTERANCE EXCEPTION TO THE HEARSAY
RULE.
Our review of this PCR appeal is guided by well-established
principles. Under the Sixth Amendment of the United States
4 A-4688-16T2
Constitution, a person accused of crimes is guaranteed the
effective assistance of legal counsel in his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). To establish a
deprivation of that right, a convicted defendant must satisfy the
two-part test enunciated in Strickland by demonstrating that: (1)
counsel's performance was deficient, and (2) the deficient
performance actually prejudiced the accused's defense. Ibid.; see
also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-part test in New Jersey). In 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 (quoting State v. Williams, 39
N.J. 471, 489 (1963), overruled on other grounds by, State v.
Czachor, 82 N.J. 392 (1980)).
In order to obtain an evidentiary hearing on a PCR application
based upon ineffective assistance claims, a defendant must make a
prima facie showing of deficient performance and actual prejudice.
State v. Preciose, 129 N.J. 451, 462-64 (1992). "When determining
the propriety of conducting an evidentiary hearing, the PCR court
should view the facts in the light most favorable to the
5 A-4688-16T2
defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citing
State v. Marshall, 148 N.J. 89, 158 (1997)); see also Preciose,
129 N.J. at 462-63.
We have considered defendant's appeal in light of these legal
standards and the record. Having done so, we affirm the trial
court's dismissal of defendant's PCR petition, substantially for
the cogent reasons set forth in Judge Rosero's February 14, 2017
oral opinion. We only add a few amplifying comments.
We fully agree with Judge Rosero that the victim's alleged
statement to Weekes about the alleged prior incident with the
Dominican was not an admissible excited utterance. The victim
appears to have had an opportunity to deliberate or fabricate
before making the statement. See, e.g., State v. Cotto, 182 N.J.
316, 323-29 (2005) (ruling that a time interval of thirty-five to
forty-five minutes was too lengthy in the context provided to meet
the requirements of the rule). Moreover, we agree with the court
that the probative value of the statement was minimal at best.
Moreover, given the timing of defendant entering the building
with the victim and hurriedly leaving ten minutes later, the jury
reasonably made a circumstantial inference that defendant was the
victim's shooter. Although defendant argues that one of the other
people, such as Potts or Simpkins, might have been the trigger
person, or that some unidentified third party in the area might
6 A-4688-16T2
have entered the building without being caught on camera, that
claim is highly speculative.
We accordingly concur with Judge Rosero that defendant failed
to present a prima facie case of ineffectiveness of his former
trial counsel. Because of that failure, an evidentiary hearing
on defendant's petition was unnecessary. Preciose, 129 N.J. at
462.
Affirmed.
7 A-4688-16T2
STATE OF NEW JERSEY VS. ALAMEEN F. ADAMS (10-07-1735, ESSEX COUNTY AND STATEWIDE)
Combined Opinion