STATE OF NEW JERSEY v. MARSELIS GASTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1022-05T51022-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARSELIS GASTON,

Defendant-Appellant.

________________________________

 

Submitted: April 25, 2006 - Decided May 10, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 98-02-0120.

Maynard, Truland & Ware, attorneys for appellant (Joe B. Truland, Jr., on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Marselis Gaston appeals from an order denying his post-conviction relief (PCR) petition, asserting ineffective assistance of trial counsel. We affirm.

Following a jury trial, defendant was convicted of the lesser-included offense of second-degree aggravated assault and first-degree robbery of Bobby Hall with co-defendant Mary Gaston, as well as possession of a weapon for an unlawful purpose. Defendant was sentenced to a fifteen-year custodial term, subject to NERA, N.J.S.A. 2C:43-7.2.

Defendant appealed, challenging his conviction and sentence. He contended he was denied a fair trial when the judge failed to sua sponte excuse an African American juror who had fallen asleep during the proceedings, and his trial counsel's failure to object to the continuation of this juror on the panel constituted ineffective assistance of counsel. Defendant also claimed he was denied a speedy trial because of the over four-year delay from the incident and three-year-and nine-month delay from the indictment. We addressed and rejected these claims. We affirmed defendants' conviction and sentence. State v. Gaston, Nos. A-4992-01 and A-6560-01 (App. Div. October 29, 2003). Thereafter, defendant filed a petition for certification to the Supreme Court, which was denied on January 22, 2004. 178 N.J. 454 (2004).

On March 10, 2005 defendant filed his PCR petition, asserting ineffective assistance of trial counsel and requesting an evidentiary hearing. More particularly, defendant contended his trial counsel was ineffective for not moving to dismiss the indictment before trial, for not requesting the removal of a sleeping juror and for not investigating the existence of a "possible" witness on the scene who would have testified on his behalf. Following oral argument on October 14, 2005, Judge Subryan denied PCR relief as procedurally barred and on the merits. The court stated:

This Court finds that the first legal basis supporting petitioner's ineffective assistance of counsel claim is identical to the one he raised in support of his speedy trial claim on direct appeal. Here the issue raised by the petitioner is whether his trial counsel is ineffective under the Strickland/Fritz test for not moving to dismiss the charges early enough prior to trial. However, the Appellate Division has already conclusively held that the petitioner was not prejudiced by the pretrial delay.

In their unpublished opinion, the Appellate Division found that the four-year delay from the offense to the trial was presumptively prejudicial and therefore an analysis of the four . . . factors was required to overcome that presumption.

After concluding the pretrial delay resulted from the State's inability to locate the victim, the Appellate Division held that the pretrial delay did not actually prejudice the petitioner. Specifically, the Court found that the delay did not affect the availability of defense witnesses, nor did it impair the memory of any defense witness due to the passage of time.

Additionally, the Court noted that petitioner was not incarcerated during the pretrial delay. The petitioner cannot now relitigate the issue by claiming his trial counsel was ineffective by not moving to dismiss the indictment sooner. Even if petitioner can establish that his trial counsel was deficient, the Appellate Division has conclusively determined that the petitioner was not prejudiced by the pretrial delay. Therefore, petitioner cannot establish both prongs of the Strickland/Fritz test. Accordingly, Rule 3:22-5 procedurally bars this Court from reconsidering the issue in a collateral proceeding.

Petitioner also contends that his counsel erred by not asking the Court to remove a juror who had fallen asleep during the trial. However, this claim was also fully adjudicated on direct appeal. "Post-conviction relief is neither a substitute for direct appeal nor an opportunity to relitigate cases already decided on the merits," [State v.]Preciose, 129 N.J. [451], 460 [(1992)].

The Appellate Division thoroughly addressed this issue and the Court found that counsel's decision not to remove the juror was a strategic decision based on the racial make-up of the jury. Therefore, they found that the brief nap taken by the juror during counsel's admittedly repetitious cross-examination of the victim did not prejudice the defendant.

Accordingly, this claim is also procedurally barred by Rule 3:22-5 and may not be relitigated in these proceedings.

Lastly, this Court finds that the petitioners' third claim that his counselor erred by not searching for possible witnesses at the scene of the incident could have been raised on direct appeal. As a result, this claim is procedurally barred by Rule 3:22-4.

Generally, courts have been reluctant to find that claims of ineffective assistance of counsel are procedurally barred during collateral review, particularly when the petitioner retained trial counsel on direct appeal. However, the factors underlying this concern are not present here. Petitioner was not represented by the same counsel at trial and on . . . direct appeal. Petitioner's contention is that his trial counsel was ineffective for not properly investigating his case, but he does not contend that his appellate counsel was ineffective from [omitting] that claim on direct appeal. Accordingly, this Court finds that petitioner had the opportunity to raise this issue on direct appeal; therefore, petitioner's claim of ineffective assistance of counsel, based solely on his trial counsel's failure to investigate, is procedurally barred pursuant to Rule 3:22-4.

Despite the determination that petitioner's claim is procedurally barred, this Court will briefly address the substance of petitioner's claim. In short, this Court finds that the petitioner's claim is without merit and that he has not met his burden in establishing a prima facie claim of ineffective assistance of counsel.

. . . .

Petitioner has failed to assert any specific facts that . . . an investigation by his . . . trial counsel would have revealed. Petitioner's mere assertion that there may have been "a possible witness" at the scene, without an affidavit or certification indicating what they would have testified to if called, is not enough to satisfy this burden.

[(Citations omitted).]

Defendant renews these arguments on appeal. We are satisfied from our review of the record that his arguments are without merit, and affirm substantially for the reasons articulated by the trial judge in his oral opinion. R. 2:11-3(e)(2).

Affirmed.

 

(continued)

(continued)

6

A-1022-05T5

May 10, 2006