NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1709-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YUSEF STEELE, a/k/a YUSIF STEELE,
Defendant-Appellant. ___________________________
Submitted January 24, 2019 – Decided April 18, 2019
Before Judges Fuentes and Moynihan.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02- 0326.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Rahman Scurato, Designated Counsel; William P. Welaj, on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian Dennis Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Yusef Steele appeals from an order denying his application for
post-conviction relief (PCR) without an evidentiary hearing. 1 A jury found
defendant guilty of the sole count in the indictment handed down against him:
fourth-degree contempt, N.J.S.A. 2C:29-9(a), for disobeying a Drug Offender
Restraining Order (DORO) issued pursuant to N.J.S.A. 2C:35-5.7. He advances
a single argument:
THE POST-CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.
Specifically, in his merits brief, defendant contends his trial counsel was
ineffective because he: "failed to adequately communicate with the defendant,
failed to investigate potential defenses to the charge against him, and failed to
1 Defendant appealed the trial court's initial denial of this PCR. Because the trial court denied the petition without affording defendant's counsel oral argument, and failed to provide a statement of reasons why oral argument was unnecessary, we reversed and remanded. State v. Steele, A-2599-14 (App. Div. Oct. 27, 2016) (slip. op. at 6-7); see State v. Parker, 212 N.J. 269, 282-83 (2012) (remanding a PCR case after PCR judge neither granted oral argument nor provided a statement of reasons for appellate review). Defendant's petition was subsequently denied after oral argument. A-1709-17T1 2 make a motion to dismiss the indictment prior to trial." We are unpersuaded
and affirm.
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the test formulated in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), first by "showing that counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment,"
Strickland, 466 U.S. at 687, and then by proving he suffered prejudice due to
counsel's deficient performance, id. at 691-92. Defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. Because the trial court did not conduct an evidentiary
hearing, our review of the PCR court's legal conclusions and factual inferences
is de novo. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).
We agree with the PCR court that defendant's contentions that counsel
failed to communicate and investigate are bald assertions, unsupported by any
evidence. Defendant did not assert, through affidavits or certifications based
upon personal knowledge, what counsel failed to communicate to him or what a
more adequate investigation would have revealed. See State v. Porter, 216 N.J.
343, 355 (2013); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
A-1709-17T1 3 Defendant's mere "bald assertions" do not support a claim of counsel's
ineffective assistance. Cummings, 321 N.J. Super. at 170.
Further, defendant failed to meet the second Strickland-Fritz prong by
establishing prejudice engendered by counsel's alleged errors. Defendant did
not demonstrate how counsel's failure to discuss the case and failure to
investigate impacted the trial.
And defendant's general allegations of counsel's failures do not establish
a prima facie case of counsel's ineffectiveness. In light of defendant's failure to
present a prima facie case, an evidentiary hearing was not warranted. R. 3:22-
10(b); State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant bases his contention that his trial counsel should have filed a
motion to dismiss on the assistant prosecutor's failure to instruct the grand jury
regarding the crime of contempt. 2 In presenting the case against defendant, the
assistant prosecutor told the grand jurors that they were considering one count:
"violating a drug restraining order, [a] third[-]degree [offense]." He then
elicited testimony from the arresting officer that, while on patrol, the officer saw
defendant, who he knew "by name and face," in an area from which defendant
2 Defense counsel filed a post-verdict motion based on the assistant prosecutor's failure to instruct the jury. A-1709-17T1 4 was prohibited by a DORO. The officer verified the DORO was still in effect
and arrested defendant for violating the order.
After the officer testified, the assistant prosecutor asked the grand jurors
if they wanted him to see exhibits one and two which the officer had identified
as the DORO; none of the jurors accepted the assistant prosecutor's offer. The
assistant prosecutor then addressed the grand jurors: "Do you wish me to go
over that [s]tatute with you? I know you've had it before. No one wishes? Okay.
No hands are raised and nods are going no so with that then madam foreman
[sic] I will turn it over to you for that one count."
Defendant contends that had his trial counsel made a timely motion to
dismiss the indictment – prior to trial per Rule 3:10-2(c) – it would have been
granted because the jury instruction error resulted in the grand jury returning
"an indictment for an offense involving a different degree than that sought by
the assistant prosecutor." 3 Once dismissed, defendant avers,
it is conceivable the State might have decided not to pursue the matter in light of the nature of the charge involving a fourth[-]degree offense, or a mutually acceptable plea agreement might have been reached between the respective parties which would have
3 We note the jury's verdict rendered moot any argument that the grand jury was not properly instructed. State v. Laws, 262 N.J. Super. 551, 563 (App. Div. 1993).
A-1709-17T1 5 avoided the need for a trial and resulted in a more favorable outcome to the defendant.
We are not persuaded by defendant's argument. First, we note that the
statute which the assistant prosecutor referenced when he told the grand jurors,
"I know you've had it before," was the one he referenced at the beginning of the
presentment, after he stated the count the jurors were considering was a violation
of a drug restraining order. He told the jurors: "I note you've been given that
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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-1709-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YUSEF STEELE, a/k/a YUSIF STEELE,
Defendant-Appellant. ___________________________
Submitted January 24, 2019 – Decided April 18, 2019
Before Judges Fuentes and Moynihan.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02- 0326.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Rahman Scurato, Designated Counsel; William P. Welaj, on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian Dennis Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Yusef Steele appeals from an order denying his application for
post-conviction relief (PCR) without an evidentiary hearing. 1 A jury found
defendant guilty of the sole count in the indictment handed down against him:
fourth-degree contempt, N.J.S.A. 2C:29-9(a), for disobeying a Drug Offender
Restraining Order (DORO) issued pursuant to N.J.S.A. 2C:35-5.7. He advances
a single argument:
THE POST-CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.
Specifically, in his merits brief, defendant contends his trial counsel was
ineffective because he: "failed to adequately communicate with the defendant,
failed to investigate potential defenses to the charge against him, and failed to
1 Defendant appealed the trial court's initial denial of this PCR. Because the trial court denied the petition without affording defendant's counsel oral argument, and failed to provide a statement of reasons why oral argument was unnecessary, we reversed and remanded. State v. Steele, A-2599-14 (App. Div. Oct. 27, 2016) (slip. op. at 6-7); see State v. Parker, 212 N.J. 269, 282-83 (2012) (remanding a PCR case after PCR judge neither granted oral argument nor provided a statement of reasons for appellate review). Defendant's petition was subsequently denied after oral argument. A-1709-17T1 2 make a motion to dismiss the indictment prior to trial." We are unpersuaded
and affirm.
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the test formulated in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), first by "showing that counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment,"
Strickland, 466 U.S. at 687, and then by proving he suffered prejudice due to
counsel's deficient performance, id. at 691-92. Defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. Because the trial court did not conduct an evidentiary
hearing, our review of the PCR court's legal conclusions and factual inferences
is de novo. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).
We agree with the PCR court that defendant's contentions that counsel
failed to communicate and investigate are bald assertions, unsupported by any
evidence. Defendant did not assert, through affidavits or certifications based
upon personal knowledge, what counsel failed to communicate to him or what a
more adequate investigation would have revealed. See State v. Porter, 216 N.J.
343, 355 (2013); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
A-1709-17T1 3 Defendant's mere "bald assertions" do not support a claim of counsel's
ineffective assistance. Cummings, 321 N.J. Super. at 170.
Further, defendant failed to meet the second Strickland-Fritz prong by
establishing prejudice engendered by counsel's alleged errors. Defendant did
not demonstrate how counsel's failure to discuss the case and failure to
investigate impacted the trial.
And defendant's general allegations of counsel's failures do not establish
a prima facie case of counsel's ineffectiveness. In light of defendant's failure to
present a prima facie case, an evidentiary hearing was not warranted. R. 3:22-
10(b); State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant bases his contention that his trial counsel should have filed a
motion to dismiss on the assistant prosecutor's failure to instruct the grand jury
regarding the crime of contempt. 2 In presenting the case against defendant, the
assistant prosecutor told the grand jurors that they were considering one count:
"violating a drug restraining order, [a] third[-]degree [offense]." He then
elicited testimony from the arresting officer that, while on patrol, the officer saw
defendant, who he knew "by name and face," in an area from which defendant
2 Defense counsel filed a post-verdict motion based on the assistant prosecutor's failure to instruct the jury. A-1709-17T1 4 was prohibited by a DORO. The officer verified the DORO was still in effect
and arrested defendant for violating the order.
After the officer testified, the assistant prosecutor asked the grand jurors
if they wanted him to see exhibits one and two which the officer had identified
as the DORO; none of the jurors accepted the assistant prosecutor's offer. The
assistant prosecutor then addressed the grand jurors: "Do you wish me to go
over that [s]tatute with you? I know you've had it before. No one wishes? Okay.
No hands are raised and nods are going no so with that then madam foreman
[sic] I will turn it over to you for that one count."
Defendant contends that had his trial counsel made a timely motion to
dismiss the indictment – prior to trial per Rule 3:10-2(c) – it would have been
granted because the jury instruction error resulted in the grand jury returning
"an indictment for an offense involving a different degree than that sought by
the assistant prosecutor." 3 Once dismissed, defendant avers,
it is conceivable the State might have decided not to pursue the matter in light of the nature of the charge involving a fourth[-]degree offense, or a mutually acceptable plea agreement might have been reached between the respective parties which would have
3 We note the jury's verdict rendered moot any argument that the grand jury was not properly instructed. State v. Laws, 262 N.J. Super. 551, 563 (App. Div. 1993).
A-1709-17T1 5 avoided the need for a trial and resulted in a more favorable outcome to the defendant.
We are not persuaded by defendant's argument. First, we note that the
statute which the assistant prosecutor referenced when he told the grand jurors,
"I know you've had it before," was the one he referenced at the beginning of the
presentment, after he stated the count the jurors were considering was a violation
of a drug restraining order. He told the jurors: "I note you've been given that
[s]tatute before, the restraining order [s]tatute, the drug restraining order
[s]tatute. Everyone is nodding their head yes. Okay. If you have any
questions[,] I'll review it again for you at the conclusion of the proceedings."
The instruction pertained to the violation of a DORO. A DORO contempt
is a fourth-degree crime; no statute provides for a third-degree DORO contempt.
See N.J.S.A. 2C:29-9. It is therefore clear that, despite the assistant prosecutor's
misstatement as to the degree of the crime, the grand jurors previously received
the correct instruction on the elements of the crime, which they declined to hear
again.
We also note that the model jury charge for all violations of N.J.S.A.
2C:29-9 sets forth the same elements: "A person is guilty of a crime . . . if he
purposely or knowingly disobeys a judicial order or hinders, obstructs or
impedes the effectuation of a judicial order or the exercise of jurisdiction over
A-1709-17T1 6 any person, thing or controversy by a Court, administrative body or investigative
entity." Model Jury Charges (Criminal), “Contempt (N.J.S.A. 2C:29-9)”
(approved Oct. 17, 1988). The degree of the crime is based on the type of
restraining order violated. See N.J.S.A. 2C:29-9. Thus, even if the grand jurors
had previously considered a third-degree contempt, they would have received
the same instruction setting forth the elements common to all contempt crimes.
Although "[a] prosecutor must charge the grand jury 'as to the elements of
specific offenses,'" State v. Eldakroury, 439 N.J. Super. 304, 309 (App. Div.
2015) (quoting State v. Triestman, 416 N.J. Super. 195, 205 (App. Div. 2010)),
"a prosecutor's decision on how to instruct a grand jury will constitute grounds
for challenging an indictment only in exceptional cases," Triestman, 416 N.J.
Super. at 202. "Incomplete or imprecise grand-jury instructions do not
necessarily warrant dismissal of an indictment; rather, the instructions must be
'blatantly wrong.'" Id. at 205 (quoting State v. Hogan, 336 N.J. Super. 319, 344
(App. Div. 2001)).
We perceive no error in the grand jury instructions. The indictment
returned by the grand jury cites N.J.S.A. 2C:29-9 and expressly states defendant
"did purposely or knowingly disobey a judicial order, to wit: a Drug Offender
Restraining Order" prohibiting defendant from being in the specified area.
A-1709-17T1 7 Defendant does not dispute that the evidence was sufficient to warrant the
indictment. As such, even if defendant's counsel had filed a timely motion to
dismiss, it would not have been granted. As we recognized in Laws: "Because
an indictment should only be quashed on the 'clearest and plainest grounds,' the
conduct of a prosecutor should not warrant dismissal unless it clearly inv ades
the grand jury's decision-making function." 262 N.J. Super. at 562 (citation
omitted) (quoting State v. Dixon, 125 N.J. 223, 237 (1991)); see also State v.
Hogan, 336 N.J. Super. 319, 344 (App. Div. 2010) (noting that the standard for
dismissal "can be satisfied by showing that the grand jury would have reached a
different result but for the prosecutor's error"). Defendant has failed to show
that the grand jurors would not have returned the same indictment if fully
instructed. Defendant's counsel's failure to file a motion to dismiss, therefore,
did not have a probable impact on the outcome of the case. As such, defendant
failed to establish a prima facie case of ineffective assistance of counsel; the
PCR court correctly concluded an evidentiary hearing was not warranted and
denied defendant's PCR petition.
To the extent we have not addressed defendant's other arguments, we
determine they are without sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
A-1709-17T1 8 Affirmed.
A-1709-17T1 9