STATE OF NEW JERSEY VS. YUSEF STEELE (09-05-0884, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0352-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YUSEF STEELE, a/k/a
YUSIF STEELE,
Defendant-Appellant.
________________________
Submitted December 14, 2020 – Decided December 31, 2020
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 09-05-
0884.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kisha M. Hebbon, Designated Counsel, on
the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Yusef Steele appeals the trial court's denial of his petition for
post-conviction relief ("PCR") arising out of Middlesex County Indictment No.
09-05-0884. We consider this appeal back-to-back with A-0353-18, which
concerns the trial court's denial of a PCR petition stemming from an unrelated
indictment. For the reasons that follow, we affirm.
The facts were described in our previous opinion on direct appeal from
defendant's conviction in this case. State v. Steele, No. A-4044-11 (App. Div.
Mar. 24, 2015) (slip opinion). Succinctly stated, New Brunswick police
observed defendant on April 10, 2009 in an area known for drug trafficking.
They saw defendant and another man huddled close, and defendant appeared to
be counting something. The men separated when they saw the officers. As
defendant walked away, one of the officers saw him drop a bundle of heroin on
the ground. The police apprehended him and found on his person seven bags of
marijuana plus $254 in cash. The bags of heroin were retrieved from the ground
close by.
According to the police, the seized marijuana and heroin were placed in
an evidence bag and secured at the police station. Samples of the drugs were
tested at the State Police laboratory and confirmed by the chemist to be heroin
and marijuana. The police questioned defendant about the seized drugs. He
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admitted the marijuana was for personal use but refused to concede that the
heroin was his.
The indictment charged defendant in five counts with multiple drug
offenses concerning the heroin and marijuana: count one, third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1); count two, third-degree
possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(3); count three, fourth-degree possession with intent to distribute
marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12); and counts four
and five, third-degree possession with intent to distribute heroin and marijuana
within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a).
Defendant's pretrial motion to suppress the seized drugs and to dismiss
the indictment failed.
The case was tried twice. The first trial in May 2011 resulted in a mistrial
because an empaneled juror had passed by while defendant was being arrested.
At the second trial in November 2011, the jury found defendant guilty of all five
counts.
The trial court sentenced defendant on count four to a mandatory extended
term of seven years with a three-year parole disqualifier, to be served
consecutively to the sentence imposed on Indictment No. 08-10-1809. The other
counts either merged or resulted in concurrent terms.
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On direct appeal in 2013, this court upheld defendant's convictions on
certain counts but vacated the convictions on two counts of the marijuana
offenses because the court had failed to charge lesser-included offenses. We
reserved defendant's pro se claims of ineffective assistance of counsel for a
future PCR petition. The Supreme Court denied certification. State v. Steele,
223 N.J. 163 (2015).
On remand, the trial court dismissed those two counts and resentenced
defendant to a three-year prison term with a three-year parole disqualifier on the
surviving counts.
Thereafter, on May 24, 2018, the trial court 1 denied defendant's PCR
petition without an evidentiary hearing. That same day, the court likewise
denied defendant's petition for PCR arising from an unrelated indictment, which
is the subject of the appeal in A-0353-18.
In the present appeal, defendant argues the following:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO
DETERMINE THE MERITS OF HIS CONTENTION
THAT HE WAS DENIED THE RIGHT TO THE
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
1
The PCR judge had not presided over the trials.
A-0352-18T2
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A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST
CONVICTION RELIEF.
B. TRIAL COUNSEL RENDERED INEFFECTIVE
LEGAL REPRESENTATION BY VIRTUE OF HIS
FAILURE TO CONSULT WITH DEFENDANT
PRIOR TO STIPULATING TO THE CHAIN OF
CUSTODY AND LAB REPORT REGARDING THE
DRUGS IN QUESTION.
C. DEFENDANT IS ENTITLED TO A REMAND TO
THE TRIAL COURT TO AFFORD HIM AN
EVIDENTIARY HEARING TO DETERMINE THE
MERITS OF HIS CONTENTION THAT HE WAS
DENIED THE EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL.
Having considered these arguments, we affirm, substantially for the sound
reasons articulated in the PCR judge's oral decision.
The applicable law is well established and requires little elaboration. To
establish a deprivation of the Sixth Amendment right to the effective assistance
of counsel, a convicted defendant must satisfy the two-part test enunciated in
Strickland v. Washington, 466 U.S. 668 (1984), by demonstrating that: (1)
counsel's performance was deficient, and (2) the deficient performance actually
prejudiced the accused's defense. Id. at 687; see also State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the Strickland two-part test in New Jersey). When
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reviewing such claims, courts apply a strong presumption that defense counsel
"rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment." Strickland, 466 U.S. at 690.
"[C]omplaints 'merely of matters of trial strategy' will not serve to ground a
constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 54 (citations omitted);
see also State v. Perry, 124 N.J. 128, 153 (1991).
Defendant's PCR petition hinges on an argument that his attorney at the
second trial was deficient because that attorney agreed with the prosecutor to
stipulate to the chain of custody of the drugs and the associated lab report. We
disagree.
The record shows that the State presented the arresting officers and a State
forensic scientist at the first trial to establish the chain of custody and they were
cross-examined. The stipulation, which defendant contends his attorney made
over his strenuous opposition, relieved the State of calling these and other chain
of custody witnesses at the second trial.
Defendant testified in his own defense at the second trial and asserted that
the heroin he was shown at the police station when the officers interrogated him
was different from the heroin the prosecutors presented at trial. However,
defendant admitted to the marijuana possession and did not testify that the
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marijuana presented at court was not the same marijuana taken from his person
or shown to him after his arrest.
Defendant fails to show there was clear prejudice arising from his
counsel's stipulation about the chain of custody. Defendant has proffered no
proof of evidence-tampering or a break in the chain of the drugs' custody, other
than his testimony that the drugs presented in court looked different from the
drugs he was shown at the police station. That does not undermine the State's
contention that the drugs admitted in evidence were the drugs he possessed at
the scene. There is also not a shred of proof that the laboratory analysis of the
drugs was scientifically flawed.
The stipulation avoided the specter of the State parading before the jury
chain-of-custody witnesses who could have bolstered the overall impressiveness
of the State's investigation. The stipulation is within the zone of strategic
choices that a criminal trial attorney has great latitude to make. Perry, 124 N.J.
at 153.
There was no need for an evidentiary hearing on the PCR petition, as
defendant failed to present a prima facie case for redress under the Strickland
standards. State v. Preciose, 129 N.J. 451, 462-63 (1992) (requiring a prima
facie demonstration to warrant such a hearing).
Affirmed.
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