NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3730-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARIEL JAZMIN,
Defendant-Appellant. ________________________
Submitted November 14, 2024 – Decided December 19, 2024
Before Judges Natali and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-03-0203.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
William A. Daniel, Union County Prosecutor, attorney for respondent (Michele C. Buckley, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Ariel Jazmin appeals from a June 23, 2023 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
I.
To provide context for our opinion, we refer, in part, to the recitation of
facts set forth in our unpublished opinion affirming defendant's convictions for
first-degree possession of a controlled dangerous substance (CDS) with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); third-degree
possession of imitation CDS with the intent to distribute, N.J.S.A. 2C:35-11(a);
third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); fourth-degree
resisting arrest, N.J.S.A. 2C:29-2(a), and his resulting aggregate sixteen-year
sentence.1 See State v. Jazmin, A-0628-18 (App. Div. May 16, 2022), certif.
denied, 252 N.J. 225 (2022).
On January 20, 2016, the Union County Narcotics Task Force arrested
defendant and co-defendant Angel Cesar while conducting surveillance near
Park Avenue in Linden. When the officers approached defendant and Cesar's
1 The jury acquitted defendant of second-degree possession of a controlled dangerous substance with intent to distribute within 500 feet of a public park. N.J.S.A. 2C:35-7.1.
A-3730-22 2 vehicle, they sped off, driving onto the sidewalk and into a park, eventually
striking a tree. Defendant jumped out of the vehicle's passenger side window,
ran towards the park's pond area, discarded an object later identified at trial as
exhibit S-65, which appeared to be a kilo of narcotics, and continued to flee.
Officers eventually brought defendant to the ground where he continued to resist
arrest by placing his hands underneath his body inaccessible to the officers.
The officers removed Cesar from the vehicle, where he remained after the
crash, and observed a black duffle bag which contained four rectangular objects
made of compressed powder wrapped in brown tape. The next day, during an
additional search of the vehicle, the officers discovered a rock-like substance on
the driver's seat. The packages and rock-like substance were suspected narcotics
and transported to the Union County Prosecutor's Office (UCPO) forensic lab
for testing.
The State offered defendant a plea of eleven years with sixty-one months
of parole ineligibility to resolve the charges. At a status conference the court
specifically addressed the State's plea offer with defendant and his co-defendant
and confirmed defendant's rejection of the plea offer, despite the risk he could
be sentenced to a greater custodial term if convicted. The following colloquy
ensued at that proceeding:
A-3730-22 3 THE COURT: . . . but for now you have a plea offer. . . . Mr. Cesar's is nine with [fifty-four] months' parole ineligibility. Mr. Jazmin's is [eleven] years with . . . [sixty-one] months' parole ineligibility. You both know that those are your offers, right?
[DEFENDANT]: Yes, Your Honor.
....
THE COURT: And, [defendant], you rejected that offer, right?
[DEFENDANT]: Yes, Your Honor
THE COURT: . . . And, again, I'm not going to take a lot of time to try to be exact as to what you are facing, total amount of time, but it is very significant. You understand that.
[DEFENDANT]: Yes.
THE COURT: We're talking about a lot of years in prison if you go to trial and you get convicted, potentially. You don't know what a sentencing judge might do. It might be a lot less than that. It might be around what you were offered. We don't know -- we don't know that yet, but you do know that potentially you're looking at a lot of time. . . .
Prior to trial, defendants filed a motion to have S-65 retested. The motion
judge granted the application. Thereafter, Margaret Cuthbert, a senior forensic
chemist with the UCPO's forensic laboratory, took two samples from the exhibit
and retested it in the presence of defendants' expert. They tested positive for
A-3730-22 4 cocaine. Defendants later filed another motion seeking further testing of five
more samples from S-65. The judge granted the motion and the UCPO's lab
conducted the additional tests. The results of these tests also were positive for
cocaine.
Defendants then filed a motion seeking an analysis of S-65 to determine
the amounts of cocaine and boric acid in the exhibit. The motion judge denied
the application. In his decision, the judge noted that defendant had been charged
with first-degree possession of a CDS, with intent to distribute or dispense, in a
quantity of five ounces or more, including any "adulterants or dilutants." The
judge therefore found the quantities of cocaine and boric acid in S-65 were
irrelevant. The judge noted that "purity" of the cocaine was not an element the
State had to prove to establish defendants' guilt under N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(1).
In addition, the State filed a motion in limine to bar defendants from
presenting any testimony or argument at trial concerning the percentage or
quantity of cocaine and boric acid in S-65, including the specific purity of the
cocaine, the unknown percentage or quantity of the cocaine and boric acid in S -
65, and why a quantitative test had not been performed on the exhibit. The State
also sought to bar defendants from speculating as to what such a quantitative
A-3730-22 5 test would have revealed and arguing to the jury that S-65 only contained a small
amount of cocaine.
The trial judge granted the State's motion. Like the motion judge, the trial
judge found there is "no purity element" in the charge under N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(1). The judge again determined that the relative
amounts of cocaine and boric acid in the exhibit were not relevant to determining
whether defendants were guilty of that offense.
In the trial court, defendants argued the court erred in granting the motion
because the testing results established defendants did not intend to distribute
cocaine. On this point, defendants further contended the presence of the four
kilos of boric acid showed they intended only to "bait" a prospective drug dealer
with a brick laced with cocaine, and then switch the "laced" package with the
bricks of boric acid. The judge denied the motion.
Sergeant Gary Webb of the UCPO testified for the State as an expert in
the field of packaging, handling, and distribution of narcotics. He discussed the
differences between street, mid-level, and upper-level drug dealers, how kilos
of narcotics and other substances are formed, the use of cutting agents, and
methods drug dealers use to avoid detection. Webb also described boric acid as
a white powder. He stated that by adding boric acid as a cutting agent, drug
A-3730-22 6 distributors can increase the amount of the drugs they sell and thereby increase
their profit margin.
Defendant and Cesar elected not to testify. Neither defendant presented
any witnesses.
Consistent with his pretrial arguments, defendant's counsel maintained at
trial defendant did not intend to distribute cocaine but instead sought to
perpetrate a fraud on the unsuspecting purchasers by selling them the kilos of
boric acid. It appears from counsel's arguments he relied on the presence of the
four "fake" kilos of cocaine to support his theory, as well as Sergeant Webb's
testimony.
Defendant also explained the existence of cocaine in S-65 by contending
much of it was planted by the police in the area of the V-shaped cut on the top
of the kilo. In support of this argument, defense counsel noted inconsistencies
between the testimony of the arresting officers concerning the existence of the
V-shaped incision in S-65. Counsel also contended the officer who recovered
S-65 in the park held the package for approximately ten minutes and testified he
did not see the V-shaped cut or observe any powder on the ground where the
item was recovered. Defense counsel also highlighted the next-day search of
the vehicle and questioned the location of cocaine recovered on the driver seat.
A-3730-22 7 With respect to the resisting arrest charge, counsel argued because the
officers were not in uniform and police lights were not visible in the video
depicting defendants driving over the sidewalk, defendant was unaware his
pursuers were members of law enforcement. He further explained he only failed
to surrender his hands at the time of his arrest because he fell forward onto his
arms as an officer pinned him to the ground. Finally, defendants' counsel argued
defendants were located outside the park when the officers initially approached
their vehicle but were chased into the park, thus lacking the intent necessary to
support a conviction for distributing CDS in the park.
Following the verdict, defense counsel moved for a mistrial arguing a
juror's discovery of razor blades in defendant's jacket pocket during
deliberations had the possibility of tainting the jury. Defense counsel also
moved for a judgment notwithstanding the verdict as to the charge of first-degree
possession with intent to distribute arguing the State failed to present evidence
sufficient to establish the distribution charges. The court denied both motions.
On September 12, 2022, Jazmin filed the instant timely petition for PCR
contending his counsel was ineffective under the two-part test enumerated in
A-3730-22 8 Strickland v. Washington, 466 U.S. 668, 687 (1984), 2 because he: (1) failed to
meet with defendant; (2) failed to review the discovery; (3) erroneously advised
defendant to proceed to trial rather than to accept the State's plea offer. 3
Specifically, defendant stated his counsel incorrectly advised him to
proceed to trial rather than accept a plea because the "State could not prove the
'intent' element of the charges." He maintains, despite advising trial counsel he
"very much wanted [the] matter resolved," counsel nevertheless "reassured
[him] that [he] would win at trial" and "should [he be] found guilty of [the] first
degree [CDS] charge[,] the [a]ppeals court [was] guarantee[d to] overturn the
conviction." Defendant claimed the aforementioned advice, along with defense
counsel's alleged failure to advise him of the "existence of any plea offer"
constituted ineffective assistance under Strickland.
2 To establish ineffective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland, 466 U.S. at 687, by demonstrating that: 1) counsel's performance was deficient, and 2) the deficient performance actually prejudiced the accused's defense. The Strickland test has been adopted for application under our State constitution. See State v. Fritz, 105 N.J. 42, 58 (1987). 3 Before us, defendant does not reprise all of the arguments he raised before the PCR court and we deem those unbriefed arguments waived. See Telebright Corp. v. Dir., N.J. Div. of Tax'n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2024) ("[A]n issue not briefed is deemed waived."). A-3730-22 9 Notwithstanding these claims, defendant, in his certification, continues to
dispute the State's proofs with respect to the first-degree distribution charge.
Indeed, he explained his "reason for filing this claim for relief [was] based on
the fact that there[] was only a very small amount of [cocaine] used to defraud
an end buyer" which the "lab test confirmed [by showing] the majority of the
package in question was boric acid which is fake [CDS] that looks like cocaine
but is worthless and cannot be sold in any market." He also contended the "[five]
to [seven] grams that was used to show the end buyer ended up being mix[ed]
with one of the kilograms of boric acid" resulting in S-65's positive test for
cocaine. Finally, defendant claimed defense counsel failed to review the
discovery with him and did not meet with him except for when defendant
"retained him as legal counsel" and again "several days before trial."
After considering the parties' submissions and oral arguments, the PCR
judge concluded defendant failed to establish a prima facie claim of ineffective
assistance of counsel under Strickland and accordingly denied defendant's
petition without an evidentiary hearing. In the court's written opinion, it
characterized defendant's criticisms of his trial counsel as "buyer's remorse,"
after choosing to go to trial despite what the court calls the sound, but
A-3730-22 10 unsuccessful, trial strategy of arguing he only intended to defraud by selling
imitation drugs to avoid conviction on the most serious, first-degree charge.
Further, the judge highlighted defendant's presence at numerous pretrial
hearings, at which he made no indication that he was unhappy with his
representation. The court also found based on the "happenings at the pre-trial
conference and a review of the [p]re-[t]rial memo . . . [d]efendant was well
aware of his options."
This appeal followed in which defendant raises the following arguments:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS. A. Trial Counsel Failed to Consult Adequately with Defendant. B. Trial Counsel Misadvised Defendant to Proceed to Trial and to Reject the State's Plea Offer. 4
In point I.A, defendant contends his counsel failed to consult with him,
except on two occasions, and even then, his counsel failed to review with him
the State's evidence. In point I.B., he maintains counsel's advice to proceed to
4 We have reconstituted defendant's point headings to correspond to the manner in which we address the issues.
A-3730-22 11 trial without, what he argues, a viable defense established a prima facie case of
ineffective assistance of counsel warranting an evidentiary hearing. As support,
defendant relies on the overall strength of the State's case and counsel's
misadvice that the "State could not prove the 'intent' element of the charges,"
which defendant now characterizes as a "pipe dream."
In response, the State asserts defendant never attested in his petition his
trial counsel forced or coerced him to proceed to trial or that he would now
accept the previously offered plea. It further argues defendant was fully aware
of trial counsel's defense and knowingly chose to go to trial, understanding the
risks associated and the imposition of a potentially longer sentence. The State
also maintains defendant's "consistent and unwavering assertion of the defense
set forth during trial, coupled with his presence during pre-trial motion hearings,
convincingly establishes . . . defendant was aware of the evidence against him,
and had met with and communicated with his trial counsel regarding trial
strategy . . . ." Finally, the State argues even assuming counsel's performance
was somehow deficient, defendant failed to establish he was in any way
prejudiced.
A-3730-22 12 II.
Because the PCR judge did not hold an evidentiary hearing, we review
both the factual inferences drawn by the judge from the record and the judge 's
legal conclusions de novo. State v. Aburoumi, 464 N.J. Super. 326, 338 (App.
Div. 2020); see also State v. Nash, 212 N.J. 518, 540-41 (2013).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a
criminal proceeding has the right to the assistance of counsel in his or her
defense. The right to counsel includes "the right to the effective assistance of
counsel." Nash, 212 N.J. at 541 (quoting Strickland, 466 U.S. at 686).
As noted, in Strickland, the Court established a two-part test to determine
whether a defendant has been deprived of the effective assistance of counsel.
466 U.S. at 687; Fritz, 105 N.J. at 58. Under the first prong, it must be
demonstrated that counsel's handling of the matter "fell below an objective
standard of reasonableness" and "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687-88. However, when considering a
defendant's proofs, a court must show "extreme deference" in assessing defense
counsel's performance, Fritz, 105 N.J. at 52, and "indulge a strong presumption
A-3730-22 13 that [it] falls within the wide range of reasonable professional assistance, "
Strickland, 466 U.S. at 689. To establish prejudice under the second prong, a
defendant must demonstrate a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
"With respect to both prongs of the Strickland test, a defendant asserting
ineffective assistance of counsel on PCR bears the burden of proving his or her
right to relief by a preponderance of the evidence." State v. Gaitan, 299 N.J.
339, 350 (2012); see also State v. Goodwin, 173 N.J. 583, 593 (2002). A
defendant must "do more than make bald assertions that [they were] denied the
effective assistance of counsel" to establish a prima facie claim. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant's failure to
satisfy either prong of the Strickland standard requires the denial of a PCR
petition. Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52.
We agree with the PCR judge's determination that defendant failed to
establish counsel was constitutionally deficient under Strickland. We reject
defendant's bald assertions in point I.A, that his trial counsel only met with him
on two occasions – when he was retained and two days before trial – and failed
A-3730-22 14 to reveal the State's discovery or its evidence against him, for two independent
reasons.
First and foremost, defendant's unsupported statements are utterly belied
by the record of the trial court proceedings, which reveal defendant appeared in
court with respect to significant pretrial hearings. Indeed, it is undisputed
defendant was present on February 24, 2017, and March 13, 2018, when the
court considered defendant's motion to retest the drug evidence and his counsel's
subsequent motion for a quantitative analysis. And, as noted, he appeared and
was questioned directly by the court at the October 23, 2017 status conference
when the court confirmed his desire to reject the State's plea offer, after being
advised that if convicted he could be sentenced to a significant custodial term.
He was clearly well aware of the charges and the State's proofs based on his
presence at those proceedings, as well as the circumstances of his ar rest where
he attempted to flee from the scene and discard at least some of the seized
physical evidence.
Second, defendant's certification fails to specify how his counsel's alleged
failures affected the outcome of the trial. As discussed, supra, in order for
defendant to obtain relief based on ineffective assistance grounds, he must
establish not only the particular manner in which counsel's performance was
A-3730-22 15 deficient, but also that the deficiency prejudiced his right to a fair trial.
Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. As our Supreme Court has
held, "it is not the frequency of consultation that reveals whether a defendant
has been effectively denied effective legal assistance. Rather, the proper inquiry
is whether as a result of that consultation, counsel was able [to] properly[]
investigate the case and develop a reasonable defense." State v. Savage, 120 N.J.
594, 617 (1990).
We also reject defendant's arguments in point I.B that the court erred in
denying his petition because his trial counsel incorrectly advised him to reject
the State's plea offer and proceed to trial. On this point, defendant correctly
notes "[a] defendant can challenge the voluntary, knowing, intelligent nature of
his plea by showing that the advice he received from counsel was not within the
standards governing a reasonably competent attorney." State v. Lasane, 371 N.J.
Super. 151, 163 (App. Div. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 56–57
(1985)). Similarly, a defendant can challenge his rejection of a plea offer by
claiming he was not afforded "'the effective assistance of competent counsel.'"
Lafler v. Cooper, 566 U.S. 156, 162 (2012) (citation omitted).
We examine defendant's allegations considering the record and "viewing
the facts alleged in the light most favorable to the defendant." See R. 3:22–
A-3730-22 16 10(b). Based on the above-described deficiencies and other statements in
defendant's certification, we are satisfied he failed to establish prejudice as
required by Lafler, and his reliance on that case is therefore misplaced. In
Lafler, "all parties agree[d] the performance of [defendant's] counsel was
deficient when he advised [defendant] to reject the plea offer on the grounds he
could not be convicted at trial." 566 U.S. at 163. Further, it was "conceded"
defendant's decision to reject the offer and go to trial "was the result of
ineffective assistance during the plea negotiation process." Id. at 166.
Lafler nevertheless required that a defendant must still show "a reasonable
probability that but for counsel's errors he would have accepted the plea." Id. at
171. Specifically, the court held that where deficient advice leads to the
rejection of a plea offer,
a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
[Id. at 164.]
A-3730-22 17 Notably, defendant does not specifically attest he would have pled guilty
to the first-degree charges (or any of the charges), nor does he unequivocally
state he would have accepted the State's offer of an eleven-year custodial term. 5
Instead, he only vaguely asserts he told his counsel he "very much wanted the
matter resolved" and denies that he was informed of a plea offer, contrary to the
record, and continues to advance the arguments his counsel presented at trial;
namely, that defendant did not intend to distribute cocaine, as evidenced by the
four kilos of boric acid and the five to seven grams of cocaine he intended to
"show the end buyer ended up being mixed" with S-65.
As defendant cannot show prejudice, we "need not determine whether
counsel's performance was deficient" on this point. State v. Marshall, 148 N.J.
89, 261 (1997) (quoting Strickland, 466 U.S. at 697). Even if we were to address
the issue, we are satisfied defendant failed to establish his counsel's performance
was constitutionally deficient.
In this regard, in the face of the State's proofs, defense counsel zealously
advocated on defendant's behalf by filing numerous pre-trial motions concerning
retesting and suppressing evidence, advancing a defense at trial consistent with
5 In its merits brief, the State represents the plea offer required defendant to plead guilty to the first-degree offense, an assertion defendant does not contest. A-3730-22 18 defendant's continued claims as revealed in his petition, and by filing post-trial
motions to correct perceived errors by the trial court. Finally, we note
defendant's belated claims his counsel's defenses attempting to negate his intent
were a "pipe dream" failed to acknowledge the jury's acquittal of defendant on
the charge of second-degree possession of cocaine with intent to distribute
within 500 feet of a public park.
In the final analysis, we are satisfied from our review of the record
defendant failed to establish a prima facie showing of ineffectiveness of trial
counsel within the Strickland test. Accordingly, the PCR court correctly
concluded that an evidentiary hearing was not warranted. See State v. Preciose,
129 N.J. 451, 462-63 (1992).
To the extent we have not addressed any of defendant's remaining
arguments it is because we have determined they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3730-22 19