NOT FOR PUBLICATION WITHOUT THE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-4622-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER DESA,
Defendant-Appellant.
___________________________
Argued telephonically September 22, 2020 –
Decided September 30, 2020
Before Judges Yannotti, Haas, and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-02-
0180.
Steven E. Braun, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Steven E. Braun, on the brief).
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Yolanda Ciccone, Middlesex County
Prosecutor, attorney; Joie D. Piderit, of counsel and on
the brief).
PER CURIAM
Defendant appeals from an April 18, 2019 Law Division order, which
denied his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
We incorporate herein the procedural history and facts set forth in State
v. Desa, No. A-5226-14 (App. Div. June 8, 2017), certif. denied, 231 N.J. 539
(2017). The following facts are pertinent to the present appeal.
Following a multi-day trial, the jury convicted defendant of first-degree
robbery, fourth-degree theft by unlawful taking, second-degree eluding a law
enforcement officer, third-degree resisting arrest, two counts of second-degree
aggravated assault by causing injury to another while fleeing or attempting to
elude a law enforcement officer, third-degree criminal mischief, and fourth-
degree possession of an imitation firearm. (slip op. at 1). The trial judge
sentenced defendant to an aggregate term of thirty-eight years in prison, subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Id. at 2.
Defendant appealed his conviction and sentence. Ibid. We affirmed
defendant's convictions, but ordered the trial judge to merge the conviction for
second-degree eluding into the two convictions for second-degree aggravated
A-4622-18T3
2
assault. Id. at 3. On remand, the court sentenced defendant to an aggregate term
of twenty-nine years in prison, subject to NERA.
Defendant filed a PCR petition and argued that his attorney provided him
with ineffective legal assistance. Specifically, defendant alleged that his
attorney: (1) had a conflict of interest with him because of a "contingency fee
arrangement"; (2) failed to instruct him not to plead guilty to charges in another
matter in which defendant was represented by a different attorney; (3) failed to
provide him with discovery or call an alibi witness; (4) erred by not calling an
expert witness to testify at trial; (5) failed to challenge the cell phone tracking
evidence the State presented at trial; and (6) did not adequately represent him at
sentencing.
The judge considered and rejected each of these contentions. The judge
concluded that defendant failed to satisfy the two-prong test of Strickland v.
Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial
counsel's performance was deficient and that, but for the deficient performance,
the result would have been different.
In a thorough oral opinion, the judge first reviewed defendant's claim that
his trial attorney entered into an impermissible contingency fee arrangement
with him. As the judge noted, R.P.C. 1.5(d)(2) states that "[a] lawyer shall not
A-4622-18T3
3
enter into an arrangement for, charge, or collect . . . a contingent fee for
representing a defendant in a criminal case."
Here, defendant's attorney agreed to represent defendant in two separate
criminal matters in Somerset and Middlesex Counties, including the present
case. In return, defendant agreed to pay his attorney $100,000. However, th e
parties' agreement specifically stated that "it is anticipated that the [$100,000]
will be paid out of any settlement proceeds recovered in" a civil matter defendant
had filed against Piscataway Township, the Piscataway Police Department, and
a police officer for injuries he sustained when the officer shot defendant as he
began to elude the law enforcement officers who were trying to apprehend him.
In other words, defendant's attorney, who was representing him in the civil
action, assumed the risk that he might never be paid for representing defendant
in the criminal matter. Thus, payment was not contingent on whether defense
counsel was successful at defendant's trial on the charges involved in this case.
Under these circumstances, the judge found that defendant did not have a
contingency fee agreement with his attorney in the criminal matter. Because the
agreement did not violate R.P.C. 1.5(d)(2), the judge concluded that defense
counsel did not have an impermissible conflict of interest and rejected
defendant's contention to the contrary.
A-4622-18T3
4
The judge also rejected defendant's argument that his attorney should have
instructed him not to plead guilty to unrelated theft charges pending against him
in Middlesex County. Because he pled guilty to those charges before the jury
convicted him in the present case, and defendant was incarcerated for this entire
period, defendant claims he received only gap-time credits in the present matter
for the time he served in jail after his guilty plea, rather than jail credits.
Defendant asserts that if he had waited to plead guilty to the theft charges until
the day he was sentenced in the present case, he would have received jail credits
for all of the time he spent incarcerated.
However, defendant was represented by a different attorney in connection
with the Middlesex County theft charges. There is nothing in the record to
indicate that defendant's attorney in this case was responsible in any way for
defendant's decision to plead guilty to those charges in advance of his trial in
the present matter. As the trial judge found, defendant received all of the jail
and gap-time credits due him at the time of sentencing in both matters.
Therefore, the judge ruled that defendant's attorney was not ineffective for
actions defendant and a different attorney took regarding the theft charges.
The judge next rejected defendant's assertion that his attorney should have
provided him with discovery that would have enabled him to locate an alibi
A-4622-18T3
5
witness known only as "Dee." As the judge observed, defendant did not provide
an affidavit or certification from "Dee," or anyone else with first-hand
knowledge of the matter, stating what testimony this individual would have
provided if counsel had been able to locate him and call him as a witness.
Therefore, the judge found that defendant's claim lacked merit.
In his petition, defendant also argued that his attorney was ineffective
because he did not call an expert witness at trial. Defendant alleged that he was
"in shock" when he committed the offenses for which he was convicted because
he was injured when the police officer shot him. Defendant claims that an expert
would have been able to corroborate this assertion. Once again, however,
defendant did not provide an affidavit or certification from an expert to support
this proposed defense. Accordingly, the judge rejected his argument on this
point.
Defendant acknowledged that his attorney filed both a motion to suppress
evidence at trial, and a motion to sever the charges. Although he stated in his
petition that he was dissatisfied with the results of these motions, defendant did
not raise these issues on direct appeal. Therefore, the judge found that
defendant's arguments were barred by Rule 3:22-4.
A-4622-18T3
6
Defendant also argued that his attorney was ineffective because he did not
argue against the imposition of consecutive sentences and did not present
mitigating factors in support of a lower sentence. However, the sentencing
transcript revealed that the attorney argued "that to run any sentence in this case
consecutively is not warranted." In addition, defendant did not identify any
specific mitigating factors that the attorney should have pressed at the time of
sentencing. Moreover, we affirmed defendant's consecutive sentences on direct
appeal, although we did order that one of the charges should have been merged,
which resulted in a reduced sentence for defendant. Therefore, defendant could
not establish either prong of the Strickland test.
Because defendant failed to establish a prima facie case of ineffective
assistance of counsel on any of his claims, the judge determined that an
evidentiary hearing was not required. This appeal followed.
On appeal, defendant raises the same arguments that he unsuccessfully
presented to the PCR judge. Defendant contends:
POINT I
AN EVIDENTIARY HEARING SHOULD HAVE
BEEN HELD TO DETERMINE WHETHER TRIAL
DEFENSE COUNSEL HAD A CONFLICT OF
INTEREST BECAUSE OF A CONTINGENCY FEE
ARRANGEMENT.
A-4622-18T3
7
POINT II
DUE TO TRIAL DEFENSE COUNSEL'S
MALFEASANCE, DEFENDANT RECEIVED A
SENTENCE WHICH WAS EFFECTIVELY
CONSECUTIVE TO OTHER CHARGES.
POINT III
TRIAL DEFENSE COUNSEL FAILED TO PROVIDE
DISCOVERY, FAILED TO DISCUSS THE
DISCOVERY WITH DEFENDANT, AND FAILED
TO ADEQUATELY PREPARE DEFENDANT FOR
HIS TRIAL TESTIMONY.
POINT IV
TRIAL DEFENSE COUNSEL FAILED TO
CONDUCT AN INVESTIGATION AND FAILED TO
CONSULT AN EXPERT WITNESS.
POINT V
TRIAL DEFENSE COUNSEL FAILED TO
PROPERLY CHALLENGE THE CELL PHONE
TRACKING IN THE MOTION TO SUPPRESS AND
THE TIMELINE IN THE MOTION TO SEVER.
POINT VI
TRIAL DEFENSE COUNSEL FAILED TO ARGUE
FOR CONCURRENT SENTENCES AND FAILED
TO PROVIDE MITIGATING FACTORS.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
A-4622-18T3
8
459 (1992). To sustain that burden, the defendant must allege and articulate
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).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel." State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant
evidentiary hearings and make a determination on the merits only if the
defendant has presented a prima facie claim of ineffective assistance, material
issues of disputed facts lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).
We review a judge's decision to deny a PCR petition without an evidentiary
hearing for abuse of discretion. Preciose, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant 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, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).
There is a strong presumption that counsel "rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
A-4622-18T3
9
judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not
presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific
errors of counsel undermined the reliability" of the proceeding. United States
v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Moreover, such acts or omissions of counsel must amount to more than
mere tactical strategy. Strickland, 466 U.S. at 689. As the Supreme Court
observed in Strickland,
[a] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that, under
the circumstances, the challenged action "might be
considered sound trial strategy."
[Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)).]
When a defendant claims that trial counsel inadequately investigated his
case, "he must assert the facts that an investigation would have revealed,
supported by affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification." Porter, 216 N.J. at 353
A-4622-18T3
10
(quoting Cummings, 321 N.J. Super. at 170). In addition, deciding which
witnesses to call to the stand is "an art," and we must be "highly deferential" to
such choices. State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466
U.S. at 689).
Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
for the reasons detailed at length in the trial judge's thorough oral opinion. We
discern no abuse of discretion in the judge's consideration of the issues, or in his
decision to deny the petition without an evidentiary hearing. We are satisfied
that the trial attorney's performance was not deficient, and defendant provided
nothing more than bald assertions to the contrary.
Affirmed.
A-4622-18T3
11