State v. Victor Cyrus, unpublished opinion, App. Div. Docket No. A-3068-08T3 (December 6, 2010) - Denial of PCR reversed, case remanded for further proceedings.
"Since defendant's sentencing hearing on August 10, 2007, he has attempted to present a claim of ineffective assistance based on [trial attorney] Bergrin's failure to file a motion to suppress and failure of attorney who stood in for Bergrin at sentencing to argue that the imposition of two ADPA [Anti-Drug Profiteering Act] penalties violated his expectations under the plea agreement. Nonetheless, neither PCR counsel nor the public defender assigned on remand has presented any argument based on the facts and law relevant to the merits of defendant's suppression claim or the discussion about the ADPA penalties at the time of defendant's plea and sentencing.... Defendant raised arguments about the performance of his attorneys at his plea, sentencing and PCR hearings. There was support for his claims available in the record -- specifically, in the transcripts of the proceedings, the brief submitted by PCR counsel and defendant's certification. Collectively, the attorneys in the post-conviction proceedings failed to present those claims to the court.... A decision to forego a motion to suppress because of a Brimage guideline is not an unassailable tactical decision if it is made without an analysis of the facts pertinent to the search and without weighing the positive effect of dismissal of charges against the negative effect of a Brimage guideline designed to encourage early entry of a guilty plea. Those questions, due to the performance of PCR counsel and the public defender, were not addressed.... The possibility that Bergrin made a tactical decision did not absolve the attorneys representing defendant post-conviction of their respective obligations to advance defendant's arguments.... Similarly, both attorneys failed to present an argument grounded in the record to advance defendant's objections to the legal assistance he received in connection with the ADPA penalties. It is clear from the transcript of the sentencing proceeding that defendant's attorney presented no argument at all, but PCR counsel did not make that point.... For the foregoing reasons, we conclude that defendant did not receive effective assistance of counsel at his PCR hearing or on his subsequent motions for amplification of decision denying PCR. Defendant is entitled to file a new petition with the assistance of counsel who has communicated with him, investigated his claims and fashioned a sound legal argument."
