NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-3515-18T4
STATE OF NEW JERSEY,
Submitted October 5, 2020 – Decided November 20, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-03-0421.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Lillian Kayed, Assistant Prosecutor, on the
Appellant filed a pro se brief.
Defendant Hanif Hopson appeals from the denial of his petition for post -
conviction relief (PCR) without an evidentiary hearing. For the reasons that
follow, we affirm in part and vacate and remand in part.
Defendant was convicted in 2014 by a jury of committing second-degree
certain persons not to have a weapon, N.J.S.A. 2C:39-7(b). The sentencing court
imposed a prison term of fifteen years under N.J.S.A. 2C:43-7(a)(3), subject to
seven and a half years of parole ineligibility under N.J.S.A. 2C:43-6(c).
Defendant appealed and we affirmed his conviction and sentence in an
unpublished opinion. State v. Hopson, No. A-4678-15 (App. Div. Oct. 3, 2017).
On direct appeal, defendant argued, among other things, 1 that the trial court
As we described in our earlier opinion, defendant argued the following four
THE COURT SHOULD REVERSE AND REMAND
FOR A NEW TRIAL BECAUSE OF THE
PROSECUTOR'S ELEVENTH-HOUR DISMISSAL
OF THE OTHER CHARGES TO BE TRIED, WHICH
ALLOWED THE PROSECUTOR TO SUDDENLY
INTRODUCE BEFORE THE JURY THE FACT
THAT DEFENDANT WAS A "PREDICATE
FELON," THE INTRODUCTION OF "OTHER
CRIMES OR WRONGS" EVIDENCE AGAINST
DEFENDANT THAT WAS NOT AT ISSUE BEFORE
THE JURY BELOW, AND THE ALLOWANCE OF
improperly permitted the State to dismiss the first four counts of the indictment,
allowing the State to introduce evidence that he had committed a predicate
offense, had engaged in other wrongs, and had previous encounters with the
Id. at 3–4.
In affirming, we rejected defendant's arguments and
concluded they lacked sufficient merit to warrant discussion in a written
TESTIMONY AT TRIAL TELLING THE JURY
THAT TESTIFYING POLICE OFFICERS HAD HAD
"PREVIOUS ENCOUNTERS" AND "OTHER
INCIDENTS" WITH DEFENDANT BEFORE THE
INCIDENT IN QUESTION.
THE PROSECUTOR WENT BEYOND FAIR
COMMENT ON THE EVIDENCE AND DEPRIVED
DEFENDANT OF A FAIR JURY TRIAL BY
TELLING THE JURY THAT IN ORDER TO FIND
THE DEFENDANT NOT GUILTY THEY WOULD
HAVE TO FIND THAT ALL THE POLICE
OFFICERS ENGAGED IN A CONSPIRACY TO LIE.
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR ACQUITTAL.
DEFENDANT'S SENTENCE IS IMPROPER AND
Id. at 4–11.
The Supreme Court denied defendant's ensuing petition
for certification. State v. Hopson,
232 N.J. 485
The facts underlying defendant's convictions are set forth in our earlier
opinion and need not be repeated here. See Hopson, slip op. at 2–4. Suffice to
say for our purposes here that in 2014 defendant, who had been previously
convicted of a felony, tossed a handgun away while he was being pursued on
foot by police officers. Defendant was eventually apprehended, the gun was
retrieved, police arrested him, and a grand jury charged him in a five-count
indictment with various offenses including the second-degree certain persons
offense. Prior to the commencement of the trial, the trial court granted the
State's motion to dismiss all of the counts of the indictment except the one
certain persons offense.
On April 10, 2018, defendant filed a PCR petition in which he again
challenged the dismissal of the other counts of the indictment and the State's
playing of an audio tape of a "dispatch recording," and he argued that he received
the ineffective assistance of counsel (IAC) of trial and appellate counsel. As to
trial counsel, he argued that his attorney failed to secure discovery or subpoena
"police officers involved in the investigation" of his case. As to appellate
counsel, he contended that his attorney failed to raise various issues relating to
"prosecutorial abuse," and the trial court's admission of prejudicial evidence
"without first holding a N.J.R.E. 104 hearing."
In a brief filed by PCR counsel, defendant raised additional claims: (1)
that his claims for PCR were not barred by Rule 3:22 because his claims assert
constitutional issues arising under the United States Constitution and the New
Jersey Constitution, (2) that he had "provided prima facie proof" that he had
received IAC at trial, (3) that he received IAC on direct appeal, and (4) that he
was entitled to an evidentiary hearing on these claims. The brief also
incorporated by reference the contentions raised in defendant's earlier brief.
Defendant filed another supplemental brief in which he again highlighted
the alleged error in the dismissal of the indictment's first four counts. He also
explained how under State v. Brown,
180 N.J. 572
(2004), the dismissal was
prejudicial and that his attorneys failed to take appropriate action in response to
the State's motion at trial and failed to pursue the issue on appeal.
The PCR judge denied defendant's petition by order dated January 24,
2019. In a comprehensive written decision that accompanied her order, the
judge identified the issues before her as trial "counsel['s] failure[e] to argue
against the dismissal of the first four counts" and "counsel [not being] prepared
to try the certain person offense." As to appellate counsel, the judge stated
defendant's claim was he received IAC when counsel "failed to fully argue his
case on . . . dismissing of the first four counts–taking away [d]efendant's right
to a bifurcated trial" under Brown.
The judge initially concluded that under Rule 3:22-5, defendant's
arguments relating to the dismissal were procedurally barred because we already
decided on direct appeal that the issues lacked merit.
Id. at 3–4.
the PCR judge addressed in detail defendant's arguments arising from the
dismissal and found no merit to any of defendant's contentions as to IAC relating
to either trial counsel's or appellate counsel's performance when dealing with
the dismissal of the first four counts of the indictment.
Id. at 4–6.
As to those
claims, the PCR judge concluded that defendant failed to meet the requirement
for establishing a prima facie claim of IAC under Strickland v. Washington,
466 U.S. 668
, 687 (1984), as adopted by the New Jersey Supreme Court in State v.
105 N.J. 42
Id. at 6–9.
For that reason, the judge concluded under
State v. Marshall,
148 N.J. 89
, 158 (1997) and State v. Preciose,
129 N.J. 451
462–63 (1992), that defendant was not entitled to an evidentiary hearing. This
On appeal, defendant argues the following points in a brief filed by
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS TRIAL ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY
FAILING TO ADEQUATELY CHALLENGE THE
STATE'S MOTION TO DISMISS COUNTS ONE–
FOUR, AND THAT HIS APPELLATE ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL FOR FAILING TO RAISE ISSUES OF
PROSECUTORIAL ABUSE AND PREJUDICIAL
THE PCR COURT ERRON[E]OUSLY RULED
THAT [DEFENDANT'S] CLAIM THAT TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO
CHALLENGE THE STATE'S MOTION TO DISMISS
WAS PROCEDURALLY BARRED.
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON [DEFENDANT'S] PRO SE CLAIMS THAT
TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE FOR FAILING TO SECURE
COMPLETE DISCOVERY AND SUBPOENA
WITNESSES. (NOT RAISED BELOW).
In a supplemental brief defendant filed pro se, he raises the following
additional arguments that we have renumbered:
THE PCR COURT ERRED BY NOT ADDRESSING
DEFENDANT'S PRO SE SUBMISSION/CLAIM OF
AN ABUSE OF DISCRETION PROSECUTORIAL
AND OR JUDICIAL. (RAISED BELOW).
BECAUSE [DEFENDANT] WAS NOT CONVICTED
OF THE FIRST FOUR COUNT[S] OF THE
INDICTMENT, HE WAS NOT A CONVICTED
PERSON FOR THE PURPOSE OF SATISFYING THE
THIRD ELEMENT OF THE CERTAIN PERSON
CHARGE. (PARTIALLY RAISED BELOW).
PCR COURT ERRED IN NOT FINDING
INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL. (PARTIALLY RAISED BELOW).
We have considered these arguments and conclude that as to defendant's
contentions as stated in Points I, II, and IV–VI, that again relate to the State 's
dismissal of the indictment's first four counts, they are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the denial
of PCR as to those contentions substantially for the reasons stated by the PCR
judge in her cogent January 24, 2019 written decision.
However, we do find merit to defendant's argument in Point III that the
PCR judge overlooked defendant's arguments as to IAC arising from trial
counsel's failure to secure discovery or subpoena witnesses. As we cannot
discern any comments about those contentions in the PCR judge's otherwise
comprehensive opinion, we are constrained to remand the matter for a
determination of those issues.
Affirmed in part; vacated and remanded in part for further proceedings
consistent with our opinion. We do not retain jurisdiction.