STATE OF NEW JERSEY VS. HOWARD J. ALTMAN (15-06-1197, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-0029-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOWARD J. ALTMAN,

Defendant-Appellant.
___________________________

Submitted December 11, 2019 – Decided February 5, 2020

Before Judges Koblitz and Whipple.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-06-1197.

Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).

Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Cheryl L. Hammel,
Assistant Prosecutor, on the brief).

PER CURIAM
 Defendant Howard Altman appeals from the denial of his post-conviction

relief (PCR) without an evidentiary hearing. We affirm primarily for the reasons

explained by Judge Guy P. Ryan in his thorough written decision of July 9, 2018.

Defendant raises the following issues on appeal:

POINT I: [DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILING TO
COMMUNICATE, CONSULT, REVIEW
DISCOVERY, OR INVESTIGATE, ALL OF WHICH
LED TO HER INADEQUATE REPRESENTATION
DURING THE PRETRIAL SUPPRESSION
HEARING AND PLEA NEGOTIATIONS, AND FOR
FAILING TO ARGUE ADEQUATELY AT
SENTENCING.

Defendant was indicted for two separate incidents. The first was a theft

that occurred on April 2, 2015, where defendant, in his capacity as a real estate

professional, inserted his own name and deposited into his personal bank

account a blank check for $1000 that was to go into a trust account. The second

was a bank robbery on April 8, 2015.

Three witnesses to the bank robbery — the bank manager, a teller, and

another bank employee — gave nearly identical statements to the responding

detective about what they saw. All three statements asserted the bank teller

yelled out to her co-workers, the defendant was holding a gun and demanded

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money, and when defendant left, the bank manager yelled out the license plate

number of defendant's vehicle and a bank employee wrote it down. A bank

protective services manager was able to view the bank surveillance video from

her Pennsylvania office. She told police there were images of defendant not

wearing a mask on the video, that he had dark brown hair, was wearing light

blue pants, dark sneakers, and a sweatshirt with writing on it.

Defendant's car was later stopped and defendant was arrested. A search

of the car pursuant to a search warrant recovered $6,650 in cash, a black wool

hat, a gray zip-up hooded sweatshirt with writing that matched the writing in the

surveillance video, gray sweatpants, drug paraphernalia, and a .38 caliber

special lead round. After his arrest, defendant was brought to the police station

and interviewed by a detective; the interview was videotaped. Defendant was

advised of his Miranda1 rights, waived them, agreed to speak with the detective,

and confessed.

Defendant was first indicted for third-degree theft for the misappropriated

check. Defendant was later indicted on the first-degree robbery count.

Defendant's total exposure for both charges was twenty-five years in prison and

over $200,000 in fines.

1
Miranda v. Arizona, 384 U.S. 436 (1966).
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 The State sought to have defendant's videotaped confession admitted at

trial. The trial judge conducted a hearing and found the Miranda warnings were

properly given, and that defendant did waive those rights. The trial judge further

found the waiver "was knowing, intelligent, and voluntary in light of the totality

of the circumstances." The judge noted despite defendant's statements about

wanting to take his own life, his drug use, and being in a low point, there was

no indication either by the detective or by the trial judge's own observations of

the videotape that defendant was under the influence; there was not "swaying or

slurring his words," nor "sweating, wavering or slumping down in the chair,

nothing like that." The trial judge found defendant was "candid and cooperative

as acknowledged by the officer." The videotaped statement was found

admissible.

Right before trial was scheduled to start, defendant pled guilty to the

charges under indictments 15-05-1080, third-degree theft, and 15-06-1197, first-

degree robbery, a first-degree crime to be sentenced in the second-degree range,

with the State agreeing to recommend a sentence of eight years subject to the

No Early Release Act (NERA), N.J.S.A. 2C: 43-7.2. Defendant was also to pay

restitution, as written on the plea form. The trial judge asked if defendant

understood the plea offer, and verified that defendant understood he

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 could have a trial in this matter. In fact, the matter was
scheduled for trial. And at trial it would be the State's
burden to prove you guilty beyond a reasonable doubt
on both of these matters. That you would have an
opportunity to have [defense counsel] cross-examine
the State's witnesses or present witnesses of your own.
You could take the stand on your own behalf or remain
silent. But by entering into this agreement, you're
giving up all those rights.

To which defendant responded "I fully understand, yes." The trial judge went

on to ask defendant if anyone was forcing him, threatening him or offering him

anything to enter into the plea, to which defendant responded in the negative,

and stated he was entering into the plea voluntarily.

Defendant testified defense counsel answered all his questions; he was

satisfied with her representation; defense counsel went over the plea form with

him; and the circled answers, the initials on the bottom of each page, and the

signature on the last page were his. The trial judge confirmed defendant

understood and that he signed the NERA supplemental plea form. When asked,

defendant stated he did not have any questions about the plea offer.

Defense counsel laid the factual basis for the plea for both the third-degree

theft as well as the robbery. As to the robbery, defense counsel and defendant

engaged in the following colloquy:

[DEFENSE COUNSEL]: And you put [the teller]
in immediate fear of bodily injury by exhibiting or by

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 giving her the impression that you had a gun. Is that
right?

[Defendant]: Yes, ma'am.

....

[Defense Counsel]: And the gun, more
specifically, the weapon, more specifically, was a
handgun. Is that right?

[Defendant]: Yes, ma'am.

The State then clarified that defendant exhibited a gun to the teller to put

her in fear of bodily injury in order to facilitate the theft, all to which defendant

agreed. The trial judge accepted the plea.

At sentencing, defense counsel stated she went over the presentence report

and the sentencing memo with defendant. The trial judge had read the

sentencing memo as well as letters in support from family members and friends,

and asked if there were "any additions, corrections or clarifications to be made."

Defense counsel argued for mitigating factor seven, and asked the trial judge to

consider the character and attitude of defendant based on the letters and

defendant's family's presence at sentencing and asked the trial judge to consider

a sentence of six years subject to NERA due to defendant's lack of a prior record

and his character and attitude. Defense counsel pointed out that defendant was

a trustee at the jail, and again noted how defendant's family had not abandoned

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him as they were present in court. The trial judge then gave defendant an

opportunity to speak on his own behalf.

After considering "the presentence report, the victim impact statements,

as well as the memo that was prepared by defense counsel, and the letters that

were . . . sent from family members and friends," the trial judge found

aggravating factors three, the risk defendant will commit another offense, and

nine, the need to deter defendant and others from violating the law. The trial

judge found mitigating factor six, defendant has compensated or will

compensate the victim for the damage sustained or would do community service,

but gave it moderate weight because of the impact statements that "describe the

lasting effects of the fear of having a gun pointed in their face . . . and those are

the type of things that this emotional damage that they have suffered can't be

compensated by a dollar amount. . . ." The trial judge also found mitigatin g

factor seven, defendant does not have a history of criminal activity, and ten,

defendant is particularly likely to respond affirmatively to probationary

treatment.

The trial judge found the mitigating factors substantially outweighed the

aggravating factors and sentenced defendant in accordance with the plea

recommendation to eight years of imprisonment for, first-degree robbery,

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subject to NERA, to be served concurrently with the third-degree theft sentence

of three years flat.

Defendant filed no direct appeal but petitioned for PCR, regarding only

the robbery conviction on October 11, 2017. PCR counsel argued that defense

counsel's lack of communication and failure to review discovery fully with

defendant deprived defendant from having an active role in his criminal defense.

PCR counsel also argued that while defense counsel did submit character letters,

her lack of client contact prohibited a "more personal argument that may have

been effective towards the [c]ourt to possibly secure a more favorable sentence."

Defendant himself asserted that he was to "elocute to the fact that I had a

firearm as part of my plea, which I was adamant with [defense counsel] that I

did not want to do . . . [t]here was no weapon or mask recovered ever."

Defendant alleged that defense counsel told him "the [State] would only agree

to give me the six with the [eighty-five] if [defendant] did elocute to the fact

that [he] had a firearm," and that he "would never have agreed to do it in the

first place" if it were not for the allegedly-promised six years. Defendant also

asserted that defense counsel "told [his] family" the judge was amenable to a

six-year sentence, and that she "misled my son and my sister" that six years was

the recommended sentence.

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 Defendant contended that while he willfully gave his statement, he was

under the influence and suicidal, and defense counsel "refused to bring up those

issues to the arresting officer." Defendant alleged that if defense counsel had

"actually even tried" to suppress his statement, it might have been suppressed

and the State's evidence against him might not have been as strong.

Defendant stated that he had around fifteen character reference letters

written for him but realized when he got his copy of the sentencing report that

there were two missing – one from his wife of twenty-two years and one from a

real estate associate. He felt it was "very important to the fact that when [the

trial judge] sentenced me to the eight years with [eighty-five], that [the trial

judge] took that into account." Defendant also believed that the trial judge's

impression that he had spent some of the money from the bank was "held against

[him]" in that it "also might have influenced [the trial judge's] decision" to not

give him a six-year sentence.

In a written decision, Judge Ryan denied defendant's PCR petition because

it failed on both prongs of Strickland v. Washington, 466 U.S. 668 (1984), and

therefore did not establish a prima facie case of ineffective assistance of counsel.

The PCR judge paid particular attention to the record finding defendant received

"a very favorable plea." The PCR judge indicated defendant received effective

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assistance as defendant's total exposure was twenty-five years, but he was

instead sentenced to eight years for the robbery, concurrent to the second

sentence for theft, even though they were separate crimes against different

victims on different dates, "clearly expos[ing] [defendant] to the possibility, if

not likelihood, of consecutive sentences. State v. Yarborough, 100 N.J. 627,

643-44 (1985)." Judge Ryan found defendant's claims of ineffective assistance

were bald assertions unsupported by the record, and defendant provided no proof

of any facts an investigation might have discovered, did not submit certifications

by anyone demonstrating information that could have been discovered, or even

provide names of anyone able to provide testimony favorable to him. The PCR

judge found defendant's allegation, that he was unable to participate in his own

defense because defense counsel neglected to review discovery with him, was

unsupported by the record as defendant had multiple opportunities – through the

colloquy, through the plea form, and through the two times he addressed the

court – to indicate he was dissatisfied, but did not.

Judge Ryan reviewed the "contemporaneous transcripts of the plea and

sentence" and rejected defendant's "newly-minted dissatisfaction with his

attorney." The PCR judge noted defense counsel "zealously pursued

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suppressing [defendant's] incriminating statement . . . and the trial was

scheduled to begin at the time [defendant] pled guilty."

The PCR judge also considered and rejected four additional allegations

defendant raised to indicate defense counsel was ineffective: 1) he had never

used a gun or had a mask during the robbery; 2) defense counsel promised him

the trial judge would sentence him to six years; 3) defense counsel should have

raised his mental state during the Miranda hearing to suppress his confession;

and 4) defense counsel failed to submit character letters from his wife and from

his real estate colleague. The PCR judge found defendant's denial of possession

of a gun was contradicted by defendant's sworn testimony at the plea hearing,

where he admitted to possessing a handgun three times. The PCR judge held

defendant could not overcome his sworn admissions by "naked, post-hoc

denials. State v. Simon, 161 N.J. [416], 444 [(1999)]." The PCR judge noted

that if defendant believed there was no factual basis for his plea, he was

obligated to challenge it on direct appeal under State v. Tate, 220 N.J. 393, 404-

05 (2015). As to defendant's claim of a promise of a six-year sentence instead

of eight, the PCR judge found there was nothing in the record to show anyone

suggested the plea was for a six-year sentence, the eight-year sentence was

clearly set forth in the plea form, the trial judge reviewed it with defendant, and

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that "[n]otably, despite not reserving the right to do so in the plea form, [defense

counsel] did ask the judge to sentence [defendant] to [six years NERA]. Thus,

she was effective in seeking less time than what was called for in the plea

agreement."

As to defendant's allegations his defense counsel did not argue that his

mental state prevented him from knowingly, voluntarily, and intelligently

waiving his Miranda rights, the PCR judge found defense counsel "vigorously

cross-examined" the detective as to defendant's mental state during his interview

and "specifically argued for suppression of the confession due to defendant's

suicidal thoughts, distress, and drug addiction." The PCR judge noted that

defendant waived his right to appeal the denial of the Miranda motion when he

pled guilty, but, regardless, "defense counsel made the specific arguments

[defendant] claims she failed to raise. From this court's review of the record,

counsel's cross-examination and summation were zealous, pointed and effective.

That the judge rejected the argument does not render counsel's performance

deficient." The PCR judge also found that the failure of defense counsel to

submit character letters from defendant's wife and business associate was "of no

moment," as defendant did not submit copies of those letters, making it nothing

more than a bald assertion. The PCR judge noted that defense counsel did

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submit numerous other letters and "argued vehemently" for defendant's good

character, and that even the State conceded defendant had support from his

"entire family," so any omission would not have changed the resulting sentence.

Thus, the PCR judge found defendant did not meet either prong of the

Strickland/Fritz 2 test. The PCR judge found defendant failed prong one, as

defense counsel was effective in securing a favorable result for defendant, a

shorter sentence than his exposure for the crime to which he pled guilty and

substantially shorter than what he faced if convicted at trial. The PCR judge

found defendant failed prong two in that he did not show he would not have pled

guilty but for counsel's alleged errors, as required under State v. Gaitan, 209

N.J. 339, 351 (2012). Rather, the PCR judge noted that trial was about to begin

either that day or the next, that defendant voluntarily waived his right to trial,

and offered no evidence to support a conclusion he would not have accepted the

plea and insisted on going to trial.

As to defendant's request for an evidentiary hearing, the PCR judge denied

it finding the "bald assertions" made by defendant did not present a prima facie

2
Strickland, 466 U.S. at 693- 94; see also State v. Fritz, 105 N.J. 42, 60-61
(1987) (adopting Strickland standard).
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case, and that an evidentiary hearing would not result in a showing the outcome

would have been different or better had defendant gone to trial.

Where a judge denies a PCR petition without an evidentiary hearing, we

review the denial for abuse of discretion. State v. Brewster, 429 N.J. Super.

387, 401 (App. Div. 2013). However, where no evidentiary hearing was

conducted, "we may review the factual inferences the court has drawn from the

documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294 (App.

Div. 2016). "We also review de novo the [trial] court's conclusions of law."

Ibid. (citation omitted).

PCR is "New Jersey's analogue to the federal writ of habeas corpus." State

v. Cummings, 321 N.J. Super. 154, 164 (App. Div. 1999) (first citing State v.

Afanador, 151 N.J. 41, 49 (1997); and then citing State v. Preciose, 129 N.J.

451, 459 (1992)). A PCR claim "must be established by a preponderance of the

credible evidence." State v. McQuaid, 147 N.J. 464, 483 (1997) (citing Preciose,

129 N.J. at 459). Rule 3:22-2(a) states that PCR is cognizable if based upon a

"[s]ubstantial denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or laws of the State of

New Jersey." The Sixth Amendment of the United States Constitution and

article one, paragraph ten of the New Jersey Constitution both guarantee

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effective assistance of legal defense counsel to a person accused of a crime. See

State v. Porter, 216 N.J. 343, 352 (2013) (citing Strickland, 466 U.S. at 685-86

(1984)).

In determining whether a defendant has established a prima facie claim,

the facts should be viewed in the light most favorable to the defendant. Preciose,

129 N.J. at 462-63. To determine whether a prima facie claim of ineffective

assistance of counsel is present, the claim must be evaluated under the two -

prong Strickland test, where "a reviewing court must determine: (1) whether

counsel's performance 'fell below an objective standard of reasonableness,' and

if so, (2) whether there exists a 'reasonable probability that, but for counsel's

unprofessional error, the result of the proceeding would have been different.'"

State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland, 466 U.S. at

688, 693- 94); see also State v. Fritz, 105 N.J. 42, 60-61 (1987). However, to

establish a prima facie claim, a defendant "must do more than make bald

assertions that he was denied the effective assistance of counsel." Cummings,

321 N.J. Super. at 170. Rather, a defendant "must allege facts sufficient to

demonstrate counsel's alleged substandard performance. Thus, when a

[defendant] claims his trial attorney inadequately investigated his case, he must

assert the facts that an investigation would have revealed, supported by

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affidavits or certifications based upon the personal knowledge" of the person

making the certification or affidavit. Ibid.

Here, there was a videotaped confession, deemed admissible at trial after

a thorough Miranda hearing, where defendant admitted to putting on a mask and

possessing a gun. Although defendant asserted the gun was not real, he

acknowledged he was "sure [the teller] was scared . . . I'd be scared if somebody

came in with a gun." There were three witnesses with nearly identical statements

describing defendant, the gun, and the defendant's getaway car and license plate

number. There was also video surveillance showing defendant's face without a

mask just before he entered the bank, and the money as well as the other

incriminating items were recovered from defendant's car, which matched the

description and license plate numbers observed by the witnesses. Trial was

about to start, and the trial judge clearly and thoroughly informed defendant of

the rights he was waiving by pleading guilty, including cross-examining the

witnesses, presenting his own witnesses, and taking the stand on his own or

remaining silent. Defendant responded that he "fully underst[ood], yes."

Given defendant's understanding of the rights he gave up, as well as the

mountain of evidence against him, including his videotaped detailed confession,

it is unlikely that defendant would have insisted on going to trial because he was

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not guaranteed a six year sentence subject to NERA, where he faced a total of

twenty-five years and an over $200,000 fine, and was offered a maximum of an

eight-year sentence subject to NERA. Defendant also incorrectly asserts

counsel failed to tell the court he had already made restitution, and that this as

well as the other alleged failures, reflected in the transcripts, led to a higher

sentence than defendant would have received had counsel communicated this

information to the court.

Looking at the facts in the light most favorable to defendant, there is no

evidence defendant would have insisted on going to trial but for defense

counsel's advice, and it would not have been rational for him to do so.

Therefore, defendant has not met prong two of the Strickland/Fritz test.

Moreover, defendant's bald assertions, as the PCR judge noted, did not

present a prima facie case as required for an evidentiary hearing. Further,

defendant's allegations are vague and speculative, and an evidentiary hearing

would not "aid the court's analysis" of whether defendant is entitled to PCR.

Therefore, an evidentiary hearing was not warranted and there was no abuse of

the PCR judge's discretion. Defendant's other arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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