Ineffective Assistance Claims Rejected

The New Jersey Appellate Division affirmed the rejection of an ineffective assistance of counsel claim against two attorneys; one who represented him when he made a statement to police prior to charges

Defendant presents an issue that has not been addressed in a published decision: whether a defendant may bring a petition for PCR based on ineffective assistance of counsel for conduct occurring prior to the defendant’s being charged. Because the constitutional right to effective assistance of counsel does not attach until charge, accusation or indictment, we hold that a defendant may not do so. 

He had later given a different statement

we decline to address the substance of defendant’s claims, but note that the PCR judge determined defendant failed to demonstrate that counsel’s performance was constitutionally deficient. She found counsel “could have concluded that by giving a truthful statement, defendant had a better chance of avoiding charges in the first place, receiving more lenient treatment if charges were filed, and having a better chance of acquittal if the case proceeded to trial.”

The PCR judge further determined defendant failed to demonstrate counsel’s ineffectiveness caused him prejudice. She noted that even without giving the second statement, defendant still could have been charged with hindering his own apprehension and false swearing based on his first statement. We see no reason to disturb the judge’s decision.

The claim against trial counsel thus failed

Defendant further argues trial counsel’s deficient performance during both trials “substantially contributed to his conviction.” Defendant asserts counsel erred in his first trial by failing to timely notify the prosecution of his retraction defense, resulting in a mistrial which provided the State with a “dry run preview of the defense” and a “third statement,” which was used to impeach him during the second trial. He argues counsel erred in the second trial by consenting to the “false in one, false in all” jury instruction, to which he was “plainly and uniquely vulnerable” because of his prior conflicting statements.

We affirmed the propriety of the jury charge on direct appeal. Young, 448 N.J. Super. at 228. The PCR judge found this claim procedurally barred as having been adjudicated on the merits but went on to substantively address it, finding it to be objectively reasonable trial strategy. As the PCR judge noted, the charge was applicable to both sides and defense counsel also benefitted from it, given his strategy to attack Daniels’s credibility. She further found there was no prejudice or harm caused by defense counsel’s agreeing to the charge, because even if he had not done so, the trial court would have overruled the objection.

Defendant was the executive director of housing authority for the City of Salem appointed to that position by Mayor Davis

In March 2012, defendant came into possession of documents the Division of Child Protection and Permanency (DCPP) had sent to the city police chief, regarding allegations of child abuse against Charles Washington, a city councilman and Davis’s political adversary.

After his initial statement

Over a month later, defendant returned to the SCPO with a different attorney and gave a second sworn statement. Contrary to his first statement, defendant admitted he gave [police officer] Daniels copies of the documents, stamps and envelopes, and the voter registration list. He said he had done so at Daniels’s request, so Daniels could send them to “his fellow police officers.” He also admitted to showing copies of the documents to Housing Authority employees.

On November 28, 2012, defendant was charged with fourth-degree permitting or encouraging the release of a confidential child abuse record, N.J.S.A. 9:6-8.10b; third-degree hindering apprehension by giving a false statement to law enforcement, later amended to a disorderly persons offense, N.J.S.A. 2C:29-3(b)(4); and fourth-degree false swearing by inconsistent statements, N.J.S.A. 2C:28-2(a) and (c).

Defendant testified at his first trial, at which his second attorney continued to represent him. He said he received the DCPP documents in an anonymous mailing and gave Daniels copies and envelopes at Daniels’s request but did not tell Daniels to mail the documents. He attempted to explain his two prior inconsistent sworn statements, claiming that in the first statement he told detectives he had not given the documents to anyone because he did not think their question included Daniels because he was a police officer. Defendant said he gave the second statement to “clarify things” from his first statement.

(Mike Frisch)