STATE OF NEW JERSEY VS. ASMAR BEASE (09-01-0006, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1956-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ASMAR BEASE, a/k/a
AZMAR BEASE, ASMAIR
ZA AZ, ASMAIR ZAHBIT,
and ASMAR ZABIT,
Defendant-Appellant.
__________________________
Argued December 2, 2021 – Decided December 13, 2021
Before Judges Alvarez and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 09-01-0006.
Alan Dexter Bowman argued the cause for appellant.
Mark Niedziela, Assistant Prosecutor, argued the cause
for respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Mark Niedziela, of counsel and on
the brief).
PER CURIAM
Defendant appeals from the Law Division's order that denied his petition
for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We incorporate the procedural history and facts set forth in State v. Bease,
Docket No. A-5782-11 (App. Div. Jan. 28, 2015), certif. denied, 221 N.J. 566(2015). The following facts are pertinent to the present appeal.
The charges of attempted murder, aggravated assault, and related weapons
offenses against defendant stemmed from the early morning shooting of
Alphonso Gee. Id. at 4-6. Gee told a police officer that he was shot by defendant
and another man, later identified as co-defendant Corey Cauthen. The shooting
occurred when Gee confronted defendant after finding him in the back seat of a
car having sex with Gee's wife. Ibid. At trial, Gee identified both defendant
and Cauthen as the men who shot him. Id. at 8.
Following a multi-day trial, the jury convicted defendant of all of the
charges against him, and Judge Miguel A. de la Carrera sentenced defendant to
an aggregate term of sixty years in prison, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Id. at 1-2. Defendant appealed his convictions
and sentence, and we affirmed. Id. at 4.
Defendant filed a PCR petition and argued that his attorney provided him
with ineffective legal assistance. Specifically, defendant alleged that his
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attorney: (1) had a conflict of interest because he previously represented an
individual who was defendant's co-defendant in an unrelated case; (2) failed to
file a severance motion to force two separate trials for defendant and Cauthen;
(3) improperly waived defendant's right to a Sands-Brunson1 hearing; (4)
decided not to cross-examine Gee about a letter he signed that recanted his pre-
trial identification of defendant; (5) failed to object when the judge alleged ly
made "coercive comments" to the jury during its deliberations; and (6) used
profanity during his closing statement to the jury to describe what Bease and
Gee's wife were doing in the car when Gee discovered them.
Judge de la Carrera considered and rejected each of these contentions. In
his thorough written opinion, 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 that deficient performance, the result would have been different.
The judge first reviewed defendant's claim that his trial attorney had an
impermissible conflict of interest because he had previously represented an
individual named Lewis Alford in a case in which defendant was a co-
1
State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).
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defendant.2 Defendant speculated that Alford may have divulged information
about defendant which could have affected the trial attorney's ability to sustain
undivided loyalty to him. However, other than this bald assertion, defendant
presented no evidence to support this allegation. As the judge found, Alford
submitted an affidavit that did not disclose any of the information he supposedly
revealed to defendant's trial attorney. Instead, Alford stated he "did not provide
information implicating Asmar Bease" in any offense involved in the unrelated
proceeding. Therefore, the judge concluded that the trial attorney did not have
an impermissible conflict of interest and rejected defendant's contention to the
contrary.
Judge de la Carrera next rejected defendant's argument that his trial
attorney should have filed a motion to sever Cauthen from the case. Defendant
made no showing that such a motion would have been successful. Moreover,
the judge found that defendant's reason for seeking a severance, his hope that
Cauthen would testify in a separate trial that he shot Gee without any
involvement by defendant, would not have succeeded because Cauthen had told
2
Defendant raised this claim for the first time on direct appeal. Bease, (slip op.
at 17-18). We declined to address this argument and stated that arguments of
ineffective assistance of counsel are best addressed through petitions for PCR.
Id. at 18. Contrary to defendant's contention in this appeal, we did not direct
the trial court to conduct an evidentiary hearing on defendant's claim.
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his own attorney at the time of trial that he had an alibi and was not present at
the shooting. See State v. Cauthen, No. A-2789-16 (App. Div. Apr. 27, 2018)
(slip op. at 2-3). Under these circumstances, the judge found that defendant's
attorney made a sound tactical decision not to seek to sever the two defendants
or call Cauthen as a witness at their joint trial.
In his third argument, defendant asserted that his attorney should have
requested a Sands/Brunson hearing to determine which of his prior criminal
convictions could be raised by the State if defendant testified at the trial.
However, Judge de la Carrera found that defendant and his attorney knew that
defendant had "a lengthy criminal record" which supported the tactical decision
not to put defendant on the witness stand. Therefore, the judge found that
defendant's argument on this point did not have "any meat on the bones."
Fourth, defendant argued that his attorney should have cross-examined
Gee about a letter Gee signed in which he stated that Bease "was not involved
in the crime that was committed to [sic] me . . . nor was he present at the crime
scene." Judge de la Carrera found there was an acceptable tactical reason for
the attorney to avoid discussing the letter because the State had already
attempted to introduce the letter as evidence that Gee feared defendant. When
the judge denied the State's request following an evidentiary hearing,
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defendant's attorney determined that using the letter while cross-examining Gee
would only open the door to this damaging evidence.
The judge next rejected defendant's argument that the judge made
"coercive" statements to the jury after it advised the court that it was at an
impasse. Judge de la Carrera found that this argument should have been raised
on direct appeal. Because it was not, the judge concluded it was barred by Rule
3:22-4(a). In addition, the judge determined that contrary to defendant's
contention, the instructions he provided to the jury fully complied with all
applicable requirements for this type of jury charge.
Finally, defendant complained that the jury might have taken offense
when, during his opening statement, his attorney described the scene where Gee
discovered defendant and his wife in a car as follows:
And the prosecutor says that [Gee] goes looking for
[defendant] because he's angry, he's upset. He found
his wife in . . . I think he used the phrase an intimate
relationship. Well, excuse me, folks, and I apologize
and I don't mean to be crude, but we can talk and we
can clean things up but what [Gee] finds his wife is he
finds her, excuse the phrase, F'n in the back seat of his
car.
Judge de la Carrera found that this fleeting remark was not prejudicial and stated
that the attorney may have "intentionally used coarse language in order to
suggest how inflamed Gee . . . might have been toward [defendant] just before
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the shooting. Again, this is a tactical issue not meriting second-guessing in this
[c]ourt's view."
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 primarily raises the same arguments that he
unsuccessfully presented to Judge de la Carrera. 3 Defendant contends:
Point I.
Appellant Was Clearly Denied Effective Assistance
[O]f Counsel And A Hearing Was Required In Aid Of
A Cogent Resolution.
1. Conflict of Counsel.
2. Severance.
3. Failure To Pursue Dismissal Motion.
4. Other Claims.
3
For the first time on appeal, defendant also presents several new contentions,
including his claims that his trial attorney was ineffective because he: did not
use Gee's medical records during cross-examination of this witness; failed to
pursue a motion to dismiss the indictment after receiving Gee's letter purporting
to clear defendant of any involvement in the shooting; and exhibited a "general
lack of diligence." We have reviewed these unsupported bald assertions and
conclude they are without sufficient merit to warrant further discussion. R.
2:11-3(e)(2).
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I. The Roots Of The Right To Effective Counsel
And The Applicable Standard of Review.
1. The Standard Set Forth In Cronic and
Strickland.
2. Counsel's Responsibility To The Accused.
3. Preparedness Of Counsel Is The Linchpin.
a. Consultations With The Accused.
b. Legal Research.
II. Counsel Was Clearly Ineffective.
1. Particular Failures.
a. Failure To Request A Sever[a]nce.
b. Conflict of Interest
c. Coercive Comments to Deliberating
Jurors.
d. Other Claims.
i. Sands/Brunson Hearing.
ii. General Lack Of Diligence.
a. Recantation Evidence.
b. Medical Records.
c. Failure to Resolve
Dismissal Motion.
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d. Prejudicial Deportment.
Point II.
Errors Of The Trial Court Cumulatively Denied
Appellant A Fair Trial.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he is entitled to the requested relief.
State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 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, 354 (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.
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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
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."
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[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 355
(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 deferenti al" to
such choices. State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466
U.S. at 689, 693).
Finally, where a defendant asserts his attorney was ineffective by failing
to file a motion, he must establish that the motion would have been successful.
State v. O'Neal, 190 N.J. 601, 619 (2007). "It is not ineffective assistance of
counsel for defense counsel not to file a meritless motion. . . ." Ibid.Having considered defendant's contentions in light of the record and these
well-established principles, we affirm the denial of defendant's PCR petition
substantially for the reasons detailed at length in Judge de la Carrera's thorough
written decision. 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
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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.
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