STATE OF NEW JERSEY VS. KARIM A. DORSEY

Defendant was convicted of first-degree robbery, N.J.S.A.

2C:15-1, second-degree burglary N.J.S.A. 2C:18-2, second-degree

kidnapping, N.J.S.A. 2C:13-1(b)(1), second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and third

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). We

affirmed his convictions and remanded for the imposition of a

mandatory minimum term of imprisonment on the certain persons

offense and entry of corrected judgments of conviction. State v.

Dorsey, No. A-5759-10 (June 21, 2013), certif. denied, 217 N.J.

53 (2014). The facts underlying defendant's convictions are set

forth in our opinion and need not be repeated at length here.

Defendant's convictions arose from a home invasion by four

gun-wielding masked men. Two co-defendants, Preston McCloud and

Corderrol Priester, were charged with defendant. Priester entered

an open guilty plea and was called as a witness by McCloud at

trial. Priester exculpated both defendant and McCloud, testifying

that neither had participated in the home invasion and that he

first saw them when they were arraigned together. Priester stated

he committed the home invasion with one person who was deceased

and two others he had never met before. Priester testified they

fled when police arrived and discarded their shirts a few houses





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away. Among the clothing recovered nearby was a shirt bearing

defendant's DNA. McCloud's mother, Glenis McCloud, testified that

some of her son's clothing was stolen in a burglary of their

residence several months before the home invasion. The jury

convicted defendant and acquitted McCloud.

In his PCR petition, defendant alleged he was denied effective

assistance of counsel. He faulted the adequacy of counsel's

investigation and preparation, stating she "failed to investigate

aggressively a break in the chain of evidence by the police in

securing the abandoned shirts which contained incriminating DNA"

and failed to interview Glenis McCloud and Corderrol Priester. He

also alleged counsel was ineffective in failing to file a speedy

trial motion, a motion for severance from his co-defendant, Preston

McCloud, and a motion to dismiss the indictment.

Defendant's claims of ineffective assistance are measured

against familiar principles. The standard for determining whether

counsel's performance was ineffective for purposes of the Sixth

Amendment was formulated in Strickland v. Washington, 466 U.S.

668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our

Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to

prevail on a claim of ineffective assistance of counsel, defendant

must meet the two-prong test of establishing both that: (l)

counsel's performance was deficient and he or she made errors that





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were so egregious that counsel was not functioning effectively as

guaranteed by the Sixth Amendment to the United States

Constitution; and (2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068,

80 L. Ed. 2d at 693, 698.

There is "a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance." Id.

at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. We "judge the

reasonableness of counsel's challenged conduct on the facts of the

particular case, viewed as of the time of counsel's conduct." Id.

at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "As a general

rule, strategic miscalculations or trial mistakes are insufficient

to warrant reversal except in those rare instances where they are

of such magnitude as to thwart the fundamental guarantee of [a]

fair trial." State v. Castagna, 187 N.J. 293, 314-15 (2006)

(citation omitted).

A court should grant an evidentiary hearing on a PCR petition

if a defendant has presented a prima facie case of ineffective

assistance of counsel. State v. Preciose, 129 N.J. 451, 462

(1992). "If the court perceives that holding an evidentiary





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hearing will not aid the court's analysis of whether the defendant

is entitled to post-conviction relief . . . then an evidentiary

hearing need not be granted." State v. Marshall, 148 N.J. 89, l58

(1997) (citations omitted).

Judge Toto reviewed the principles of law applicable to

defendant's PCR petition and addressed each of his allegations in

turn. He found it was not objectively unreasonable for trial

counsel to fail to file a severance motion and that, even if such

a motion had been filed, it was unlikely to succeed. Accordingly,

the allegation failed to show defendant suffered any prejudice or

a reasonable probability that the outcome would have been

different.

Judge Toto turned to defendant's claim his counsel was

ineffective for failing to interview Glenis McCloud and Priester.

Defendant did not provide any affidavits or certifications to

demonstrate what facts these interviews would have yielded. See

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

Judge Toto rejected defendant's "bald assertions" that the failure

to conduct these interviews prejudiced him and concluded this

allegation failed to satisfy the second Strickland prong.

As to defendant's claims regarding pretrial motion practice,

Judge Toto found no basis to conclude the failure to file motions

was objectionably unreasonable or that defendant suffered any





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prejudice because the result of the proceedings would have been

different if the motions had been filed.

Finally, Judge Toto considered defendant's claim that his

trial counsel was ineffective for failing to "aggressively

investigate" the chain of custody regarding the recovered

clothing. The judge noted that there had been a discrepancy

between the testifying detective's description of one of the shirts

at trial and the description of the shirts in his report, a

discrepancy trial counsel highlighted in arguing for defendant's

acquittal. Accordingly, Judge Toto found this claim lacking in

merit.

In his appeal, defendant presents the following argument for

our consideration.

THE TRIAL 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.