NOT FOR PUBLICATION WITHOUT THE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 l imited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2098-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAHMIEL ROCK,
Defendant-Appellant.
___________________________
Submitted January 7, 2020 – Decided January 21, 2020
Before Judges Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 12-02-
0273.
Joseph E. Krakora, Public Defender, attorney for
appellant (Brian D. Driscoll, Designated Counsel, on
the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica Lucinda
do Outeiro, Assistant Prosecutor, of counsel and on the
brief; Heather Muh, Legal Assistant, on the brief).
PER CURIAM
Defendant Jahmiel Rock appeals from the January 10, 2019 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
We begin with a summary of the testimony elicited at the February 28,
2013 hearing on defendant's motion to suppress, which we set forth in our
opinion on defendant's direct appeal. State v. Rock, No. A-1814-14 (App. Div.
Aug 1, 2016) (slip op.), cert. denied, 228 N.J. 421 (2016). At the suppression
hearing, the State presented testimony from Detective Adam Mendes of the
Asbury Park Police Department. Detective Mendes provided the following
account:
At about 10:00 p.m. on November 5, 2011, Officer
Mendes was in an unmarked police SUV driven by
Lieutenant Dave DeSane accompanied by Officer Eddy
Raisin. They were on patrol in a very high-crime area
known for gang activity, where Mendes had arrested
persons for weapons and drug offenses in the past.
On Bangs Avenue, Mendes observed three men who
were walking east. Officer Mendes then observed a
Monmouth County Sheriff's Department vehicle
activate its lights to conduct a traffic stop further east.
When they saw the sheriff's lights, the three men
abruptly turned around and began walking west away
from the vehicle, their pace quickening "like they didn't
want to be near that cop car." Soon thereafter, the three
men began walking up a house's driveway. Lieutenant
A-2098-18T4
2
DeSane pulled the unmarked police SUV into the
driveway and stopped halfway. DeSane did not activate
the patrol lights or siren, and the officers did not say
anything to the individuals.
The officers exited the vehicle wearing t-shirts with
"Police" printed on them. Defendant walked ahead of
the other two men to the top of the driveway where a
fence and shrubs made it impossible to cut through to
another street. None of the officers had drawn their
weapons when Lieutenant DeSane observed defendant
take a handgun out of his waistband and discard it near
some shrubbery at the fence. DeSane shouted "he's a
41," which is a code used to advise other officers to
perform an arrest. Defendant started walking back
down the driveway, saying "I ain't doing nothing."
Nonetheless, when Officer Mendes attempted to
handcuff defendant, defendant violently swung his arm,
slipped Mendes's grasp, and ran away. Mendes and
Raisin gave chase, apprehended defendant, and placed
him under arrest. The police recovered from near the
shrubbery a revolver loaded with eight .22-caliber
hollow-point bullets, and another .22-caliber bullet.
[Id. at 2-3.]
While defendant did not testify at the suppression hearing, he presented
the testimony of the two other men who were present when the incident
occurred. Both recounted that they were taking a shortcut through a yard of a
home on Bangs Avenue when a black SUV pulled up, police exited with their
guns drawn, and ordered all three individuals to get on the ground.
A-2098-18T4
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Significantly, both men confirmed that defendant ran when the police
approached; in addition, the police recovered a handgun.
In February 2012, a grand jury returned an indictment charging defendant
with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count one); fourth-degree unlawful possession of "dum-dum or body armor
penetrating bullets," N.J.S.A. 2C:39-3(f) (count two); and third-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(3) (count three).
In March 2013, the motion court issued a written opinion denying
defendant's motion to suppress the handgun. In doing so, the court adopted the
facts testified to by Detective Mendes regarding Lieutenant DeSane's
observations and the resulting arrest of defendant and seizure of the handgun.
The court found that the officers' initial approach to defendant was a "field
inquiry," that "[d]efendant threw the handgun on the ground before police
stopped or questioned him," and that "the seizure of the handgun was lawful
pursuant to the abandoned property exception to the warrant requirement."
At defendant's jury trial, his attorney attempted to question Lieutenant
DeSane regarding documents obtained pursuant to an OPRA 1 request. However,
defense counsel failed to provide the documents to the State prior to trial. As a
1
Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to – 13.
A-2098-18T4
4
result, the trial judge interrupted the testimony and addressed the admissibility
of the documents at a Rule 104 hearing. N.J.R.E. 104. The documents
concerned two civil settlement agreements involving Lieutenant DeSane. After
reviewing the documents and considering the arguments of counsel, the judge
rejected the admissibility of the documents, explaining:
Just so the record is clear, I sat in civil for many years
before I came over here, and the mechanism used to
settle civil cases has absolutely nothing to do with the
merits of a case whatsoever.
Many times[,] cases are settled in lieu of counsel fees,
carriers just want to cut their losses. Many insurers just
want to make sure their premiums don't go out of
whack. So there are many, many components to
settlements, none of which have anything to do with
this case whatsoever.
We've got a gun that this witness has said came out of
this defendant's waistband, was discarded by him in the
headlights of a police car, and he retrieved the gun and
its been marked into [e]vidence in this court. Those are
the issues that are going to be presented to this jury, not
some irrelevant information.
On June 18, 2014, the jury returned its verdict, finding defendant guilty
on counts one and two; on count three, the jury found defendant guilty of a
lesser-included offense, disorderly persons resisting arrest. The trial judge
sentenced defendant on count one to seven years of incarceration with three
years and six months of parole ineligibility. The judge imposed concurrent
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sentences of eighteen months of incarceration on count two, and six months of
incarceration on count three.
On December 15, 2014, defendant filed an appeal, and presented the
following two points of arguments:
POINT I — THE ORDER DENYING DEFENDANT'S
MOTION TO SUPPRESS SHOULD BE REVERSED
BECAUSE THE INITIAL POLICE CONTACT WITH
DEFENDANT WAS AN UNLAWFUL
INVESTIGATIVE DETENTION, NOT A FIELD
INQUIRY, AND BECAUSE DEFENDANT DID NOT
ABANDON THE HANDGUN.
POINT II — THE SEVEN (7) YEAR BASE TERM
WITH THREE AND ONE-HALF (3 1/2) YEARS OF
PAROLE INELIGIBILITY IMPOSED ON
DEFENDANT'S CONVICTION FOR UNLAWFUL
POSSESSION OF A WEAPON ON COUNT ONE
WAS MANIFESTLY EXCESSIVE.
[Id. at 4-5.]
We rejected these arguments and affirmed defendant's conviction and
sentence. Id. at 6-14. On January 19, 2017, defendant filed his PCR petition,
alleging he received ineffective assistance of counsel.
On September 21, 2018 the PCR judge heard oral argument on the
petition. Defendant argued his trial counsel provided ineffective assistance of
counsel when he failed to file a motion for a speedy trial. The PCR judge
rejected the argument, citing "insufficient evidence on th[e] record to support a
A-2098-18T4
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finding that defense counsel's failure to file a speedy trial motion was deficient."
He explained, "Although the defendant's case did take two years and six months
to go to trial, that delay was caused, at least in part, by counsel's decision to file
a bail reduction motion as well as a motion to suppress on the defendant's
behalf." The judge further found that defendant failed to satisfy the second
prong of Strickland2 because, even if defense counsel filed a motion to dismiss
on speedy trial grounds, the motion would likely have been denied.
Defendant also argued his trial counsel was deficient regarding the
settlement documents involving Lieutenant DeSane, which the trial judge
disallowed following the Rule 104 hearing. The PCR judge rejected this
argument, concluding the trial judge excluded the settlement documents because
they had no relevance to defendant's case and "even if the report had been turned
over to the State prior to trial, it still would have been excluded as irrelevant."
Additionally, the PCR judge found defense counsel failing to serve the
settlement documents prior to trial had "no moment" to the trial judge's
determination to exclude the document as "utterly irrelevant." The PCR judge
concluded that defense counsel's alleged errors did not satisfy either prong of
2
Strickland v. Washington, 466 U.S. 668 (1984).
A-2098-18T4
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Strickland and found no basis for an evidentiary hearing on either of defendant's
claims.
This appeal followed, with defendant raising the following points of
argument:
POINT I: THE PCR COURT ERRED IN
REFUSING TO HOLD AN
EVIDENTIARY HEARING ON TRIAL
COUNSEL'S FAILURE TO PURSUE A
SPEEDY TRIAL.
POINT II: THE PCR COURT ERRED IN
REFUSING TO HOLD AN
EVIDENTIARY HEARING ON TRIAL
COUNSEL'S FAILURE TO
INVESTIGATE AND TURN OVER A
REPORT REGARDING THE STATE'S
MAIN WITNESS.
II.
"A petitioner must establish the right to [post-conviction] relief by a
preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459
(1992). To sustain that burden, the petitioner must set forth specific facts that
"provide the court with an adequate basis on which to rest its decision." State
v. Mitchell, 126 N.J. 565, 579 (1992).
A defendant must prove two elements to establish a PCR claim that trial
counsel was constitutionally ineffective: first, that "counsel's performance was
A-2098-18T4
8
deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[;]" second, that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694; accord State v. Fritz, 105 N.J. 42, 58
(1987). "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." State v. Harris, 181 N.J. 391, 432 (2004) (quoting
Strickland, 466 U.S. at 694).
To prove the first element, a defendant must "overcome a strong
presumption that counsel exercised reasonable professional judgment and sound
trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542
(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,
147 (2011)). To prove the second element, a defendant must demonstrate "how
specific errors of counsel undermined the reliability of the finding of gui lt."
United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
In assessing a Sixth Amendment speedy trial claim, this court must
consider: (1) the length of the delay, (2) the reason for the delay, (3) whether
the defendant asserted his right, and (4) whether defendant was prejudiced by
the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972).
A-2098-18T4
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In this case, the PCR judge found defense counsel filed a bail reduction
motion and a motion to suppress, which in part caused the delay of defendant's
trial. The PCR judge found defense counsel acted appropriately in filing these
pretrial motions, and the resulting delay was not an unconstitutional denial of
defendant's right to a speedy trial. The record supports these determinations.
Defendant failed to rebut the strong presumption that counsel did not render
adequate assistance and make all significant decisions in the exercise of
reasonable professional judgment. Nash, 212 N.J. at 542.
The PCR judge also concluded that defendant failed to satisfy the second
prong of Strickland because even if his counsel filed a speedy trial dismissal
motion, it would likely have been denied. Therefore, the record reveals
defendant's attorney was not deficient in failing to raise a speedy trial claim on
defendant's behalf. Strickland, 466 U.S. at 694. Additionally, there was no
evidence that defendant was prejudiced by the passage of time, and no proof that
any witnesses' memories faded or were reluctant to become involved.
PCR courts are not required to conduct evidentiary hearings unless the
defendant establishes a prima facie case and "there are material issues of
disputed fact that cannot be resolved by reference to the existing record." R.
3:22-10(b). "To establish such a prima facie case, the defendant must
A-2098-18T4
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demonstrate a reasonable likelihood that his or her claim will ultimately succeed
on the merits." State v. Marshall, 148 N.J. 89, 158 (1997). Speculative
assertions are insufficient to establish a prima facie case of ineffective assistance
of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
Defendant argues the PCR judge erred by denying his petition without an
evidentiary hearing on his speedy trial claim. The record amply supports the
PCR judge's findings and conclusions. As noted, defendant did not show "there
is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 694.
Unable to demonstrate the required prejudice, defendant failed to establish a
prima facie case for this claim. Preciose, 129 N.J. at 462. Accordingly, the PCR
judge did not abuse his discretion in denying an evidentiary hearing on this
issue.
Additionally, defendant argues the PCR judge erred in denying an
evidentiary hearing based on trial counsel's failure to provide the State before
trial with the civil settlement documents involving Lieutenant DeSane. The
PCR judge reviewed the trial judge's conclusions regarding the documents and
found the judge excluded the documents based on relevancy. The PCR judge
also found the trial judge's ruling was not affected by counsel's failure to submit
A-2098-18T4
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the documents to the State prior to trial. Having failed to establish a prima facie
case for this claim, defendant was not entitled to an evidentiary hearing.
Preciose, 129 N.J. at 462. Accordingly, we conclude the PCR judge did not
abuse his discretion in denying an evidentiary hearing on this issue.
Affirmed.
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