STATE v. ZAID

No. A-0800-13T3.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. TARIQ ZAID, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Decided January 5, 2015.


Attorney(s) appearing for the Case

Joseph E. Krakora , Public Defender, attorney for appellant ( Peter B. Meadow , Designated Counsel, on the brief).

Gaetano T. Gregory , Acting Hudson County Prosecutor, attorney for respondent ( Stephen Natoli , Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Alvarez, Waugh, and Maven.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Tariq Zaid appeals from the July 8, 2013 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

On February 28, 2007, defendant was sentenced, pursuant to a negotiated plea agreement, on two counts of an indictment charging him with various offenses arising from the brutal robbery and killing of two men. Counts two and four, which originally charged him with murder, N.J.S.A. 2C:11-3A(1) and 2C:11-3A(2), were amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4A.

The day his plea was entered, defendant, who was twenty-five years old at the time and had attended Middlesex County College, agreed to a sentence of fourteen years for each offense. The terms were to be served consecutively, resulting in an aggregate of twenty-eight years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant, of Pakistani origin, had fled to Canada while on bail. The State agreed not to indict him for bail jumping, N.J.S.A. 2C:29-7, as further consideration for his guilty plea.

Defendant's three co-defendants had been earlier convicted in three separate trials, a fact mentioned during the plea colloquy by defendant's attorney. Counsel also mentioned that because of defendant's immigrant status, "as a practical matter ... [defendant will] probably be deported before he ever [serves] those five years of [NERA parole supervision]."

Defendant agreed he was satisfied with his attorney's services, and that his waiver of the right to a jury trial was knowing, intelligent, and voluntary. He also acknowledged that the sentences would be imposed on a consecutive basis. As the judge explained, this was "[b]ecause ... there are two separate victims, and there are no free crimes."

The judge who denied defendant's PCR application decided the matter on the merits although defendant exceeded the five-year time bar found in Rule 3:22-12(a) by some two months. Defendant had alleged as grounds for relief that his attorney's representation was deficient because he did not adequately investigate the matter. In his eleven-page written decision, the judge found that merely asserting that the attorney failed to investigate, without further explanation, was insufficient. Defendant did not even suggest the nature of any exculpatory evidence that was thereby overlooked.

Defendant sets forth the following for our consideration on appeal:

POINT ONE THE PCR COURT ERRED IN MAKING FACTUAL FINDINGS WITHOUT THE BENEFIT OF AN EVIDENTIARY HEARING.

Defendant now seems to be arguing that his attorney only met with him two or three times prior to the entry of his guilty plea, failed to thoroughly develop the case to obtain a more favorable plea bargain, and misrepresented the nature of the sentence by advising him that it would be concurrent and not consecutive. We find no merit to these arguments. R. 2:11-3(e)(2).

It is virtually axiomatic that in order for defendant to obtain relief on ineffective assistance of counsel grounds, he 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. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

In order to prevail on a claim of ineffective assistance of counsel in the context of guilty pleas, a defendant must demonstrate that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that a reasonable probability exists that, but for counsel's errors, he would have insisted on trying the matter and would not have entered a guilty plea. State v. DiFrisco, 137 N.J. 434, 457 (1994).

In State v. Cummings, we explained that even viewing a defendant's contentions indulgently and in the most favorable light, they nonetheless have to set forth more than bare assertions. 321 N.J.Super. 154, 170-71 (1999). Claims that counsel failed to adequately investigate must be supported by affidavits or certifications based on personal knowledge. Id. at 170.

In this case, not only are we persuaded that the alleged deficiencies fail to establish either that counsel's assistance was less than that demanded of attorneys in criminal cases or that there was a reasonable probability that but for counsel's errors, no guilty plea would have been entered, but nothing in the Law Division record even hints at support for the contentions defendant now makes.

The plea was entered after defendant's three co-defendants were convicted at trial, a fact known to defendant. Defendant said that he had reviewed the evidence with his attorney. He had ample opportunity during the course of the entry of his guilty plea to raise any complaints and did not. He does not explain what further steps counsel could have taken to obtain a more favorable plea offer, or what exculpatory evidence a more thorough investigation would have uncovered. It is clear from the explanations of the sentence made by the prosecutor, defense counsel, and the judge, that defendant was repeatedly advised, as set forth in the plea form he signed, that the sentence would total an aggregate of twenty-eight years. These claims fall short of meeting the Strickland standard.

Affirmed.


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