STATE OF NEW JERSEY VS. JIHAD BASSITÂ (08-10-3194, ESSEX COUNTY AND STATEWIDE)
A-4135-15T1
| N.J. Super. Ct. App. Div. | Oct 5, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4135-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JIHAD BASSIT, a/k/a JIHAD
BAASIT,
Defendant-Appellant.
___________________________________
Submitted September 13, 2017 – Decided October 5, 2017
Before Judges Fuentes and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 08-
10-3194.
Joseph E. Krakora, Public Defender, attorney
for appellant (Adam W. Toraya, Designated
Counsel, of counsel and on the brief.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Stephen
A. Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Jihad Bassit appeals from the order of the Criminal
Part denying his post-conviction relief (PCR) petition. We affirm.
An Essex County Grand Jury returned a five-count indictment
against defendant charging him with murder, N.J.S.A. 2C:11-3a(1)
and (2), first degree attempted murder, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3, second degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5b, and second degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was also charged
in an Accusation with first degree conspiracy to commit murder,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1) and (2).
On June 9, 2010, defendant entered into a negotiated agreement
with the State through which he pleaded guilty to first degree
aggravated manslaughter, N.J.S.A. 2C:11-4, as a lesser included
offense of murder, second degree aggravated assault, N.J.S.A.
2C:12-1b, as a lesser included offense of attempted murder, second
degree possession of a handgun for an unlawful purpose, and first
degree conspiracy to commit murder. In return, the State agreed
to recommend that defendant be sentenced to an aggregate term of
twenty years, with an eighty-five percent period of parole
ineligibility and five years of parole supervision under the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the plea hearing, the judge questioned defendant directly
to confirm he was aware of and understood the terms of the plea
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agreement. The judge found defendant had been apprised of his
constitutional rights to stand for trial on these charges and had
voluntarily agreed to waive those rights as part of the plea
agreement. The judge also confirmed that defendant had sufficient
time to discuss this matter with his attorney and was satisfied
with his services.
On November 1, 2010, defendant moved to withdraw his guilty
plea. Defense counsel represented to the trial judge that
defendant's motion was predicated on his assertion of innocence.
Counsel explained that defendant believed that "my advice" in
persuading him to plead guilty was "inappropriate wisdom[.]"
Defendant "feels on reflection . . . that in following my advice
he made a mistake and he wishes now to withdraw his plea[.]" After
considering the arguments from both defense counsel and the
prosecutor, the judge applied the factors the Supreme Court
established in State v. Slater, 198 N.J. 145 (2009) and denied
defendant's motion. The judge thereafter sentenced defendant
consistent with the terms of the plea agreement. Defendant
appealed the sentence imposed by the court pursuant to the summary
review process in Rule 2:9-11. We affirmed. State v. Jihad
Bassit, Docket No. A-4218-10 (App. Div. August 31, 2011).
On August 9, 2012, defendant filed a pro se PCR petition
alleging ineffective assistance of trial counsel. The trial court
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assigned PCR counsel to represent defendant in this endeavor. With
the assistance of PCR counsel, defendant submitted a supplemental
certification in which he alleged that "several days" after he
pled guilty, he received a letter from codefendant Tourie Moses.
Moses allegedly admitted in this letter that he had given a "false
statement" against defendant to the police "hoping that lying
against [defendant] would benefit him in resolving his own homicide
arrest." Defendant claimed he filed a pro se motion to withdraw
his guilty plea the day after he received Moses' letter.
Defendant alleged in this certification that his attorney
came to see him at the jail after he learned from the prosecutor
of defendant's efforts to withdraw the guilty plea. According to
defendant, trial counsel discouraged him from withdrawing his
guilty plea.
My attorney expressed that the guilty plea was
still my best option given the situation that
I was in.
. . . .
While I knew all of the discovery documents
that I had reviewed over some time about the
alleged facts of the first case to come up
with a false factual basis, my attorney,
despite my assertions of innocence, told me
what to say regarding the Accusation on the
second case.
While prior to the plea withdrawal Motion I
had requested that my attorney speak with
Tourrie Moses regarding the letter that I had
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received exonerating me from writing the
alleged incriminating letter in Mr. Moses’
possession at the time of his arrest, to my
knowledge my attorney never met with Mr. Moses
or his attorney.
The PCR record also included a copy of Moses' exculpatory
letter and a certification by Moses in which he, in part, averred:
I had a letter that had incrimination words
in it that I don't know who sent to me, in
certainty I can say it wasn't from
[defendant]. I stated it was from him upon
being interviewed by Irvington detectives
because they said they knew it [came] from
him, so I went along and composed lies
accordingly hoping it would benefit me,
evidently I was involved in a murder I later
confessed to. I knew nothing about his case,
I did not know a witness, to my knowledge it’s
a female, but I went to kill a rival gang
member I had numerous disputes with.
I hope it's not too late to straighten out
what I did[.] In honesty I acted alone. He
had nothing to do with my case.
On April 12, 2013, the PCR judge heard oral argument on
defendant's petition. After considering the arguments presented
by counsel, the judge denied defendant’s petition in an order
entered on April 16, 2013. The judge explained the basis of his
ruling in a written decision attached to the order. Defendant
appealed to this court arguing, in part, that the PCR judge erred
in denying the petition without conducting an evidentiary hearing.
After reviewing the record developed before the PCR judge, we
affirmed the denial of PCR with respect to defendant’s guilty plea
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to charges related to the indictment. With respect to defendant's
guilty plea to the charge in the Accusation of first degree
conspiracy to commit murder, we concluded:
In this case, there are significant questions
of fact that can be resolved by an evidentiary
hearing in which the trial court can assess
the credibility of witnesses. Those
questions include: whether defendant did
receive a letter from Moses prior to his
sentencing; the contents of any letter
received; the full extent of communications
between defendant and his attorney regarding
the motion to withdraw the plea, including
whether he provided the letter to his
attorney, what information defendant provided
to his attorney about the letter and Moses;
and defense counsel's reasons for failing to
contact Moses or use the letter in support of
defendant’s motion.
[State v. Jihad Bassit, Docket No. A-40-13
(App. Div. August 4, 2015), slip op. at 14-
15.] .
We therefore remanded the matter for the PCR court to conduct
an evidentiary hearing limited to defendant's claim of ineffective
of counsel in connection with the charge in the Accusation of
first degree conspiracy to commit murder.
On December 4, 2015, the PCR judge adhered to our instructions
and conducted an evidentiary hearing. Defendant's trial counsel,
Touriee Moses, and defendant testified at the hearing. The State
did not call any witnesses. When asked directly whether he
received a letter from Moses concerning the charge in the
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Accusation, trial counsel responded: "I don’t recall it. I don’t
recall a letter from co-defendant, Mr. Moses, . . . being provided
to me." Trial counsel stated that if such a letter had been given
to him at the time, he would have made an effort to include it in
support of defendant’s motion to withdraw his guilty plea. Trial
counsel emphasized that any document attesting to defendant's
innocence addresses directly one of the key factors under Slater.1
He also testified that he would have spoken to Moses’ attorney to
get his "permission to talk to Mr. Moses."
Defendant and Moses both testified in sharp contrast to
defense counsel's testimony. In the process, however, they both
provided highly incriminating evidence about their membership in
the "crips," a notoriously violent gang. Defendant claimed he
sent the alleged letter to defense counsel by regular mail while
he was held in either the Bergen County Jail or the Essex County
1
In Slater, the Supreme Court held
trial judges are to consider and balance four
factors in evaluating motions to withdraw a
guilty plea: (1) whether the defendant has
asserted a colorable claim of innocence; (2)
the nature and strength of defendant's reasons
for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would
result in unfair prejudice to the State or
unfair advantage to the accused.
[Slater, supra,198 N.J. 158-59
]
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Correction facility. He did not keep a copy of the letter. Moses
identified defendant as his co-conspirator when he pled guilty to
first degree conspiracy to commit murder.
In assessing the credibility of the witnesses who testified
at the evidentiary hearing, the PCR judge noted he presided over
the plea hearings of both defendant and Moses and sentenced both
men in accordance with their respective plea agreements. Against
this backdrop, the PCR judge made the following factual findings.
I have concluded that [defense counsel's]
remarks under oath are wholly credible versus
the testimony of Bassit and Moses, which are
patently unbelievable and false. Bottomed on
the evidence presented, the court finds,
parenthetically, that the mystery Moses letter
exculpating Bassit never existed. Further the
avouchment that a letter of exculpation was
made available to defense counsel, which was
vehemently disputed by [defense counsel], and
the facts and testimony developed on the issue
clearly indicate that such a claim is a
complete and utter fabrication.
The judge ultimately concluded that defendant had not established
a prima facie case of ineffective assistance of trial counsel and
denied the petition.
Against this record, defendant now appeals raising the
following argument.
POINT ONE
THE PCR COURT'S ORDER SHOULD BE REVERSED AND
THE MATTER REMANDED TO THE TRIAL COURT TO
ALLOW THE DEFENDANT TO VACATE HIS GUILTY PLEA
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BECAUSE THE PCR COURT ERRED IN DETERMINING
THAT DEFENDANT DID NOT MEET HIS BURDEN UNDER
THE STRICKLAND STANDARD OF INEFFECTIVE
ASSISTANCE OF COUNSEL.
A PCR petition is our State's analogue to the federal writ
of habeas corpus. See State v. Afanador, 151 N.J. 41, 49 (1997).
As our Supreme Court has recently reaffirmed:
To prevail on a claim of ineffective
assistance of counsel, a defendant must
satisfy the familiar two-prong test outlined
in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064,80 L. Ed. 2d 674
,
693 (1984), and adopted by this Court in State
v. Fritz, 105 N.J. 42, 58 (1987). Defendant
must show both (1) that counsel's performance
was deficient, and (2) that the deficient
performance prejudiced the outcome.
Strickland, supra, 466 U.S. at687, 104 S. Ct. at 2064
, 80 L. Ed. 2d at 693;Fritz, supra
,
105 N.J. at 58.
[State v. Pierre-Louis, 216 N.J. 577, 579
(2014)]
In determining a claim of ineffective assistance of counsel
in a case in which a defendant pled guilty, "the issue is whether
it is ineffective assistance of counsel for counsel to provide
misleading, material information that results in an uninformed
plea, and whether that occurred here." State v. Nunez-Valdez, 200
N.J. 129, 139-40 (2009). Furthermore, we are bound to defer to the trial court’s factual findings which are substantially influenced by the judge's opportunity to hear and see the witnesses and to have the "feel" of the case. State v. Elders,192 N.J. 9
A-4135-15T1 224, 244 (2007) (citing State v. Johnson,42 N.J. 146
, 161,199 A.2d 809
(1964)).
Mindful of this standard of review, we affirm substantially
for the reasons expressed by the PCR judge in his written opinion
dated March 29, 2016. Defendant has not presented sufficient
credible evidence to warrant PCR.
Affirmed.
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