STATE OF NEW JERSEY VS. HANIF HOPSON (16-03-0421, HUDSON COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3515-18T4
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HANIF HOPSON,

     Defendant-Appellant.
________________________

                   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
                   brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Lillian Kayed, Assistant Prosecutor, on the
                   brief).

                   Appellant filed a pro se brief.

PER CURIAM
      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unpublished opinion.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


1
  As we described in our earlier opinion, defendant argued the following four
points:

            POINT I

            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


                                                                            A-3515-18T4
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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

police.

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.

            POINT II

            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.

            POINT III

            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION FOR ACQUITTAL.

            POINT IV

            DEFENDANT'S SENTENCE IS IMPROPER AND
            EXCESSIVE.


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                                        3
opinion.

Id. at 4–11.

The Supreme Court denied defendant's ensuing petition

for certification. State v. Hopson, 

232 N.J. 485

(2018).

      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


                                                                          A-3515-18T4
                                        4
"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


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                                         5
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.

Nonetheless,

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.

Fritz, 

105 N.J. 42

(1987).

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

appeal followed.

      On appeal, defendant argues the following points in a brief filed by

counsel:


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                                       6
           POINT I

           [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
           EVIDENCE.

           POINT II

           THE PCR COURT ERR[]ON[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.

           POINT III

           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:




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                                     7
            POINT [IV]

            THE PCR COURT ERRED BY NOT ADDRESSING
            DEFENDANT'S PRO SE SUBMISSION/CLAIM OF
            AN ABUSE OF DISCRETION PROSECUTORIAL
            AND OR JUDICIAL. (RAISED BELOW).

            POINT [V]

            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).

            POINT [VI]

            PCR COU[]RT 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


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                                        8
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.




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