STATE OF NEW JERSEY VS. NICHOLAS A. BROWN (12-01-0044, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4317-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS A. BROWN, a/k/a
NICHOLAS ANTHONY
BROWN, ANTHONY BROWN,
STRESS, and KNIT,

Defendant-Appellant.
________________________

Submitted September 23, 2019 – Decided October 29, 2019

Before Judges Sumners and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 12-01-
0044.

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

Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Joie D. Piderit,
 Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nicholas A. Brown appeals from a September 11, 2017 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. Before us, he presents the following arguments:

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 COUNSEL DUE TO
TRIAL COUNSEL'S FAILURE TO RAISE THE
AFFIRMATIVE DEFENSE OF INSANITY

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 Her Failure
To Conduct A Thorough Pretrial
Investigation Into The Potential
Affirmative Defense Of Insanity And Her
Failure To Call An Expert To Testify
About Defendant's Mental Illness. (Da 35-
60)

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 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 reviewed the record in light of the applicable legal standards, we are

unpersuaded by defendant's arguments and affirm substantially for the reasons

set forth by the PCR judge in his written decision.

The procedural history and trial evidence are detailed in our unpublished

decision opinion affirming defendant's conviction and sentence on direct appeal,

State v. Brown, No. A-3356-12 (App. Div. Jan. 8, 2016), certif. denied, 224 N.J.

529 (2016), and in the PCR judge's written decision opinion dated October 31,

2014. A brief summary will suffice here.

On September 22, 2011, at approximately 11:30 p.m., Woodbridge Police

Officers Thomas Ganci and Joseph Dutcher were patrolling in a marked vehicle

when they saw defendant, sitting alone in a parked car in the parking lot of an

apartment complex. As they approached defendant's car on foot, another vehicle

drove by and someone inside yelled something indecipherable. Defendant then

drove past the officers, nearly hitting Ganci. Dutcher then banged on the

window of defendant's car to alert him to stop, but defendant sped away. The

officers' ensuing car chase concluded when defendant's car came to a stop after

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colliding into a retaining wall. Defendant tried to escape on foot, but was

apprehended by Dutcher.

A subsequent search incident to defendant's arrest resulted in the seizure

of multiple controlled dangerous substances (CDS) and $787. At trial, the State

presented the testimony of an expert in the field of CDS to establish that

defendant had the intent to sell the CDS and that the money was from the sale

of CDS.

A jury found defendant guilty of multiple offenses: third-degree

possession of heroin; third-degree possession of heroin with intent to distribute;

second-degree possession of heroin with intent to distribute within 500 feet of a

public park; third-degree possession of cocaine; third-degree possession of

cocaine with intent to distribute; second-degree possession of cocaine with

intent to distribute within 500 feet of a public park; second-degree eluding; and

fourth-degree resisting arrest. Defendant was sentenced to an aggregate

extended prison term of fifteen years with a five-year period of parole

ineligibility. We affirmed his conviction and sentence on direct appeal, State v.

Brown, No. A-3356-12 (App. Div. Jan. 8, 2016), and his petition for certification

was denied. 224 N.J. 529 (2016).

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 Shortly thereafter, defendant filed a PCR petition alleging his trial counsel

was ineffective because she failed to: (1) consult with, hire, or call to testify an

expert to substantiate his schizoaffective disorder in order to present an insanity

defense; (2) consult with, hire, or call to testify an expert in the field of forensic

video analysis to evaluate the operation of the officers' motor vehicle recording

device; (3) challenge original unsworn complaints as to probable cause and lack

of a neutral judicial officer's signature; (4) challenge judicial and prosecutorial

misconduct in hiding evidence; and (5) investigate defense witnesses who

observed defendant prior to an ensuing police chase. He also contended

appellate counsel failed to argue judicial or prosecutorial misconduct and made

erroneous arguments regarding the illegality of his extended term sentences.

The PCR judge, who was also the trial judge, issued an order denying PCR

without an evidentiary hearing. In his appeal to us, defendant maintains the

judge erred in not recognizing his schizoaffective diagnosis that was rendered

prior to his arrest, and would have supported an insanity defense. He maintains

that if the defense had been presented at trial, the jury would have found him

not guilty by reason of insanity. Thus, he asserts a remand is necessary so he

can present the merits of the contention at an evidentiary hearing. We see no

cause to disagree with the PCR judge's order.

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 Applying the well-recognized two-prong test to establish ineffectiveness

of counsel, Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v.

Fritz, 105 N.J. 42, 58 (1987), the judge found there was no prima facie claim

that: (1) trial counsel's performance was deficient and (2) that the deficient

performance prejudiced the defense. As to the first prong, the judge stated in

his written decision, "the record indicates that defense counsel had defendant

evaluated and the conclusions of that evaluation stated that defendant lacked an

affirmative defense for mental incapacity. Moreover, [d]efendant received

inpatient drug treatment and there was no diagnosis of [s]chizoaffective

disorder." And as to the second prong, the judge noted, "it is highly unlikely

even if [defendant] could show that he suffered a mental incapacity, the outcome

of the trial would have been different." Since no prima facie claim of ineffective

assistance of counsel was established, the judge correctly applied State v.

Preciose, 129 N.J. 451, 463 (1992), to determine defendant was not entitled to

an evidentiary hearing.

Accordingly, we affirm substantially for the reasons set forth by the PCR

judge in his written decision. We only add that defendant's contention he could

have presented a viable insanity defense is a bald assertion not "supported by

affidavits or certifications based upon the personal knowledge of the affiant or

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the person making the certification." State v. Cummings, 321 N.J. Super. 154,

170 (App. Div. 1999) (citing R. 1:6-6); see also State v. Jones, 219 N.J. 298,

312 (2014) (holding affidavits or certifications supporting PCR petitions must

identify the facts sought to be established with particularity). Defendant failed

to submit an affidavit or certification by someone qualified to assert that

defendant had a mental disorder at the time of the crimes that would have

justified an affirmative defense of not guilty by reason of insanity.

Affirmed.

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