STATE OF NEW JERSEY VS. HITEN A. PATEL (13-04-1262, 13-08-2190, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

S
                                       RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4877-18

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

HITEN A. PATEL,
a/k/a HITEN PATEL, and
HITENDRA A. PATEL,

     Defendant-Appellant.
_________________________

                    Argued March 24, 2021 – Decided May 12, 2021

                    Before Judges Sumners and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment Nos. 13-04-1262
                    and 13-08-2190.

                    Steven E. Braun argued the cause for appellant.

                    Melinda A. Harrigan, Assistant Atlantic County
                    Prosecutor, argued the cause for respondent (Damon G.
                    Tyner, Atlantic County Prosecutor, attorney; Melinda
                    A. Harrigan, of counsel and on the brief).

PER CURIAM
      Defendant Hiten A. Patel appeals from a June 5, 2019 order denying his

petition for post-conviction relief (PCR) following a two-day evidentiary

hearing. We affirm, substantially for the reasons set forth in Judge Bernard E.

DeLury, Jr.'s comprehensive opinion.

      Following an eight-day jury trial, 1 defendant was convicted of numerous

offenses stemming from a series of sexual assaults on seven young women in

Atlantic City, New Jersey. Defendant would solicit these women, some of

whom were prostitutes, for sex, brandish a toy gun, and, at times, impersonate a

police officer to commit these sexual assaults. Defendant was sentenced on

April 2, 2015, to an aggregate term of forty-six years' imprisonment, with forty-

five of those years subject to an eighty-five percent parole ineligibility in accord

with the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his

convictions and sentence, and we affirmed in an unpublished opinion. State v.

Patel, No. A-3824-14 (App. Div. Jan. 18, 2017) (slip op. at 2). The Supreme

Court denied defendant's petition for certification. State v. Patel, 

230 N.J. 471

(2017).




1
  Defendant reviewed and rejected the State's plea offer of thirty years, subject to an
eighty-five percent parole ineligibility under the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Defendant maintained his innocence and insisted on trial.

                                          2                                     A-4877-18
      In lieu of restating the evidence presented at trial, we incorporate by

reference the facts described in our unpublished opinion. See Patel, slip op. at

2-16. On May 14, 2018, defendant filed a petition for PCR. Judge DeLury

determined that an evidentiary hearing was warranted to develop the record and

resolve the issues related to defendant's ineffective assistance claims concerning

trial strategy as well as the communications between defendant and his counsel.

During the hearings, trial counsel James J. Leonard and defendant, as well as

several family members, testified.

      Leonard indicated that, although he only had the file for three or four

months, he had enough time to prepare for trial and was able to meet with

defendant, who took an active role in the defense of his case, on many occasions.

Leonard testified that he discussed the details of defendant's case with him.

      Leonard's initial strategy was to highlight the "inconsistencies" and the

reasonable doubt in the State's case-in-chief. Leonard, however, believed that

the number of victims and the similarity of their narratives necessitated that

defendant testify to present his version of events that he did not rape the victims,

but simply engaged in commercial sex transactions. Leonard advised defendant

that, in light of his DNA on one of the victims, he needed to confront the fact

that he had solicited prostitutes and "what was most important was not that the


                                         3                                    A-4877-18
jury necessarily liked the choices that he had made, but that they believe[d] that

he didn't rape any of these women." Leonard indicated that, if defendant chose

to testify, the defense could overcome the jury's aversion to defendant's

extramarital conduct and determine he was credible. Because Leonard did not

know whether defendant would choose to testify, he prepared him for the State's

cross-examination. Notwithstanding defendant's initial hesitations with respect

to admitting to soliciting prostitutes, he was "steadfast" in his support of

Leonard's strategy.

      Leonard prepared a series of questions – a "roadmap" – he intended to

pose to defendant in the event defendant chose to testify. Because Leonard

believed defendant knew the "nuances of the file better" than anyone else, he

welcomed him to review the victims' statements, discovery, and other materials.

The answers to the questions in the "roadmap" came from defendant. Indeed,

the day before defendant testified, Leonard sent defendant a final version of the

proposed testimony and indicated that if any information was "false . . . or needs

to be corrected, now is the time to do so." Defendant responded a couple of

hours later: "[a]ttached is the document of my testimony which was corrected

with my best knowledge."




                                        4                                   A-4877-18
      After trial began, Leonard conducted a mock direct examination in front

of defendant's family. Leonard counseled defendant that "what was on trial

wasn't whether or not he was a good husband or that he liked to go to prostitutes"

but rather "whether or not he had sexually assaulted" the victims.

      Leonard testified his summation was strategic because he believed it was

necessary to acknowledge that, although the victims had troubled lives, the jury

did not have to believe them as well as confront the fact that the jury might not

like defendant's decision to solicit prostitutes. Leonard indicated his summation

was a tactical decision to emphasize that, while one could view defendant as a

"low-life" and "failure as a husband," that did not equate to him being a rapist.

Leonard commented:

            It was my strategy. I felt it was necessary to overcome
            the number of victims in the case and the emotion and
            the feelings that were out there. It was a read and I took
            it and I moved with it. But my comments were never
            reckless, they were all measured. They were all
            measured.

Leonard testified defendant was aware of the theme of his summation and knew

he was going to be "brutally honest" about the events that transpired.

      Defendant, on the other hand, testified that he was coerced into providing

false testimony because Leonard told him that if he failed to do so, he would go

to prison for a long time and not see his family. Defendant acknowledged

                                        5                                   A-4877-18
sending the email the day before he testified with corrections to the prospective

line of questioning and admitted he did not inform Leonard his testimony was

fabricated or false. Defendant indicated that he met with Leonard before trial to

discuss the strategy of the case.

          In his written decision denying defendant's petition, Judge DeLury found

Leonard's testimony to be "credible, consistent and supported by the record." In

that regard, he observed that Leonard "demonstrated a thorough understanding

and recollection of his interactions with his client, the extent of his investigation

and preparation" as well as "his strategic choices made both before and during

trial."     Conversely, Judge DeLury noted that defendant's "demeanor was

uncertain and guarded." He found defendant's testimony during the evidentiary

hearing was "belied by the record and by his own emails" which diminished his

credibility. Likewise, he determined that the testimony of defendant's family

was "not reliable" and "colored" by their emotional attachment to defendant.

Based on his credibility determinations and findings of fact, Judge DeLury

issued a ninety-three-page written opinion rejecting all of defendant's claims.

          On appeal, defendant raises the following arguments for our

consideration:




                                          6                                   A-4877-18
POINT I

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO
COUNSEL PRIOR TO AND DURING TRIAL AS
GUARANTEED    BY   THE   SIXTH    AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I,
PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.

    A. THE FAILURE OF DEFENSE COUNSEL
    TO COMMUNICATE WITH DEFENDANT.

    B. DEFENDANT SUBMITS HE WAS
    COERCED INTO TESTIFYING FROM A
    SCRIPT   PREPARED  BY   DEFENSE
    COUNSEL.

    C. DEFENSE COUNSEL WAS INEFFECTIVE
    BY WITHDRAWING HIS REQUEST FOR AN
    IDENTIFICATION CHARGE.

    D. DEFENSE COUNSEL'S FAILURE TO
    CROSS-EXAMINE DETECTIVES HERBERT
    AND REIGEL CONSTITUTED INEFFECTIVE
    ASSISTANCE OF COUNSEL.

    E. DEFENSE COUNSEL WAS INEFFECTIVE
    BY FAILING TO ADDRESS DEFENDANT'S
    WORK SCHEDULE.

    F. DEFENDANT WAS NOT PREPARED BY
    DEFENSE   COUNSEL    FOR   CROSS-
    EXAMINATION     BY   THE    STATE
    REGARDING HIS RECORDED STATEMENT.




                  7                      A-4877-18
                    G. DEFENSE COUNSEL'S INATTENTION TO
                    THE RELIABILITY OF THE MIRANDA 2
                    HEARING RECORDING AND TRANSCRIPT
                    COMPROMISED THE INTEGRITY OF THE
                    HEARING.

                    H. DEFENSE COUNSEL'S SUMMATION WAS
                    INFLAMMATORY AND PREJUDICIAL, TO
                    THE DETRIMENT OF THE DEFENSE.

                    I. DEFENSE COUNSEL WAS INEFFECTIVE
                    BY FAILING TO OBJECT TO VARIOUS
                    PORTIONS OF THE JURY INSTRUCTIONS
                    WHICH WERE ERRONEOUS AND WHICH
                    DEPRIVED DEFENDANT OF HIS RIGHT TO
                    A FAIR TRIAL.

                    J. DEFENSE COUNSEL HAD A CONFLICT OF
                    INTEREST BECAUSE OF HIS OWNERSHIP
                    OF THE BOARDWALK JOURNAL.

              POINT II
              REVERSAL OF THE TRIAL COURT'S DENIAL OF
              POST-CONVICTION RELIEF IS WARRANTED
              DUE TO CUMULATIVE ERROR.

        To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

Washington, 

466 U.S. 668

, 687 (1984), which our Supreme Court adopted in

State v. Fritz, 

105 N.J. 42

, 58 (1987). To meet the first Strickland/Fritz prong,

a defendant must establish that his counsel "made errors so serious that counsel


2
    Miranda v. Arizona, 

384 U.S. 436

(1966).

                                         8                                 A-4877-18
was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment.” 466 U.S. at 687

.            The defendant must rebut the "strong

presumption that counsel's conduct [fell] within the wide range of reasonable

professional assistance."

Id. at 689.

Thus, this court must consider whether

counsel's performance fell below an objective standard of reasonableness.

Id.

at 688.

Moreover, defendant must make those showings by presenting more

than "bald assertions that he was denied the effective assistance of counsel."

State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999). The law is

"clear that . . . purely speculative deficiencies in representation are insufficient

to justify reversal." 

Fritz, 105 N.J. at 64

.

      To satisfy the second Strickland/Fritz prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable." 

Strickland, 466 U.S. at 687

. A defendant must

establish "a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome."

Id. at 694.

"[I]f counsel's performance has been so deficient as to create a reasonable

probability that these deficiencies materially contributed to defendant's




                                         9                                     A-4877-18
conviction, the constitutional right will have been violated." 

Fritz, 105 N.J. at

58

.

      Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its

review of live witness testimony." State v. Nash, 

212 N.J. 518

, 540 (2013); see

also State v. O'Donnell, 

435 N.J. Super. 351

, 373 (App. Div. 2014) ("If a court

has conducted an evidentiary hearing on a petition for PCR, we necessarily defer

to the trial court's factual findings."). Where an evidentiary hearing has been

held, we do not disturb "the PCR court's findings that are supported by sufficient

credible evidence in the record." State v. Pierre, 

223 N.J. 560

, 576 (2015)

(quoting 

Nash, 212 N.J. at 540

). We review any legal conclusions de novo.

Nash, 212 N.J. at 540

-41 (citing State v. Harris, 

181 N.J. 391

, 415-16 (2004)).

      After carefully reviewing the record, and applying this deferential

standard of review, we are not persuaded by defendant's arguments. We are

satisfied that Judge DeLury's findings of fact, credibility determinations, and

legal conclusions are well-supported.       We therefore affirm the denial of

defendant's petition for the reasons expressed in Judge DeLury's well-reasoned

written decision. We add the following brief remarks.




                                       10                                   A-4877-18
      Defendant contends that Leonard was ineffective "by demanding that he

testify in accordance with defense counsel’s view of the matter without regard

for defendant’s express desire to tell the jury his true account of the facts." In

essence, defendant claims that Leonard suborned perjury. We disagree.

      There is nothing in the record, aside from defendant's bald assertions,

Cummings, 321 N.J. Super. at 170

, to support defendant's contention. To the

contrary, Leonard denied fabricating defendant's testimony and testified that the

responses to the questions in the "roadmap" came directly from defendant.

Likewise, the day before defendant testified, Leonard sent him the "roadmap"

and requested that defendant advise him "if these questions and answers . . .

[are] an accurate representation of what occurred, based upon your best

recollections."   Leonard informed defendant that if "anything is false,

[in]correct[,] or needs to be corrected, now is the time to do so." Defendant

responded "[a]ttached is the document of my testimony which was corrected

with my best knowledge." In short, the record belies defendant's bald assertion

that Leonard coerced him into testifying to falsities.

      Defendant also argues that Leonard's summation was prejudicial because

it expressed sympathy towards the victims while denigrating him. We remain

unconvinced.


                                       11                                   A-4877-18
      Defendant's reliance on State v. Reddick, 

76 N.J. Super. 347

(App. Div.

1962) is misplaced. 3        Although acknowledging that certain comments

overstepped the bounds of legitimate trial strategy, the panel made clear that

typically "a defendant is bound by his own counsel's trial tactics and strategy

provided that defendant's right to a fair trial is not impugned."

Id. at 352.

The

panel took great lengths to "emphasize that ordinarily reference by defense

counsel to his own client's character and criminal record is not objectionable.

Counsel often do so in anticipation of and in order to de-emphasize the

prosecutor's presentation."

Ibid.

The record in

this case, at the trial and the PCR evidentiary hearing,

reveals that Leonard's summation was a strategic decision to underscore that,

while one could view defendant as a "low-life" and "failure as a husband," he

was not a rapist. Defendant was "steadfast" in his support of this trial strategy.

Moreover, Leonard testified defendant was aware of the theme of his summation

and knew he was going to be "brutally honest" about the events that transpired.

Judge DeLury found Leonard's testimony to be credible, and we defer to that



3
  Defendant also relies on State v. Bennefield, 

567 A.2d 863

(Del. 1989). However,
we are not bound by that decision. See Lewis v. Harris, 

188 N.J. 415

, 436 (2006)
(noting that our courts are "not bound by . . . the precedents of other states, although
they may provide guideposts and persuasive authority").

                                         12                                      A-4877-18
determination because he had the ability to hear and see the witnesses. 

Pierre,

223 N.J. at 579

. We are satisfied that Leonard's comments during summation

did not deprive defendant of a right to a fair trial and, therefore, he did not

establish a prima facie showing of ineffectiveness under Strickland.

      Defendant also contends that Leonard was ineffective for withdrawing the

request for an identification charge.       We disagree.    We are mindful that

"'[a]ppropriate and proper charges are essential for a fair trial.'" State v. Baum,

224 N.J. 147

, 158-59 (2016) (alteration in original) (quoting State v. Reddish,

181 N.J. 553

, 613 (2004)). As Judge DeLury observed, however, it was sound

trial strategy to admit defendant solicited these women for sex and, instead,

focus the jury's attention on their credibility in an effort to prove he did not

sexually assault them. In that regard, identification was not an issue in the case.

See State v. Davis, 

363 N.J. Super. 556

, 561 (App. Div. 2003) (noting "a model

identification charge should be given in every case in which identification is a

legitimate issue.").   Therefore, Leonard's withdrawal of his request for an

identification charge was neither deficient nor prejudicial.

      Defendant argues Judge DeLury's instruction concerning the recovery of

the imitation gun in his car on April 5, 2011 was contrary to an earlier ruling

where he found that the nature of defendant's assaults did not rise to the level of


                                       13                                    A-4877-18
a "signature crime" permitting their use to identify him as the perpetrator.

Although this argument was raised on direct appeal and would ordinarily be

barred, R. 3:22-5, we did not address the contention that trial counsel was

ineffective in failing to object to the instruction.   In any event, we find

defendant's argument to be without merit. As we previously noted, the 2011

incident "was used only to identify defendant as the owner and driver of the car

identified by the witnesses, and someone who had a toy gun in his car, none of

which defendant denied." Patel, slip op. at 34. Indeed, defendant testified that

he owned the toy gun which he used for self-defense when soliciting prostitutes

on Pacific Avenue. In that regard, defendant testified that he used a toy gun

with M.D. to prevent her from stealing his wallet. Likewise, defendant testified

that he brandished the toy gun when K.G. pulled out a boxcutter after he

requested that she give him his money back. We therefore discern no prejudice

because neither defendant's identity, nor his possession and use of the toy gun,

were at issue in the case.

      As for defendant's remaining arguments not expressly discussed above,

they are without sufficient merit to warrant further discussion in a written

opinion. R. 2:11-3(e)(2).




                                      14                                  A-4877-18
Affirmed.




            15   A-4877-18

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