STATE OF NEW JERSEY v. BRYAN GILREATH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3078-06T43078-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYAN GILREATH,

Defendant-Appellant.

______________________________________________________________

 

Submitted October 15, 2008 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

98-04-0662.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Bryan Gilreath appeals from an order dated November 17, 2006, denying his petition for post-conviction relief (PCR). After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

On March 13, 2002, a jury convicted defendant of attempted burglary, a third-degree offense contrary to N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-1 (count one); possession of a weapon (a knife) under circumstances not manifestly appropriate for lawful use, a fourth-degree offense contrary to N.J.S.A. 2C:39-5(d) (count two); and hindering apprehension by concealment of evidence, a fourth-degree offense contrary to N.J.S.A. 2C:29-3(b) (count three). On May 17, 2002, defendant was sentenced to an extended term of seven years with a two and one-half year parole disqualifier to be served consecutively to a sentence he was then serving.

In an unpublished opinion, we affirmed defendant's judgment of conviction and his sentence. State v. Gilreath, A-0591-02 (App. Div. February 9, 2004). Defendant's petition for certification was denied by the Supreme Court. State v. Gilreath, 180 N.J. 356 (2004). In our previous opinion, we noted the evidence of guilt "was very strong," defendant elected not to testify at his trial, and the defense rested without calling any witnesses. However, the parties stipulated "that defendant grew up in Ridgewood, that his wife's maiden name was Franceece, and that her parents owned the house at 392 West End Avenue" before it was sold to Robert and Fiona Meakins. We summarized the facts of the case as follows:

At trial the State produced Erika Lowry who lived at 397 West End Avenue in Ridgewood. Ms. Lowry lived across the street from Robert and Fiona Meakins and their two children at 392 West End Avenue. The Meakins purchased their residence in December 1997, from Mr. and Mrs. Franceece, the parents of defendant's wife.

At about 1:45 p.m. on February 9, 1998, Ms. Lowry was sitting at her dining room table making Valentine's Day cards with her young son. As she glanced out her window, she saw a man come out of the woods bordering her street and walk to the Meakins' front door. The man was wearing tan pants, a brown leather bomber jacket and a brown baseball cap. He also had a brown leather knapsack and was carrying a red bag. Ms. Lowry saw the man open the storm door and reach into his pocket as if searching for keys. . . .

Because Ms. Lowry also knew that no one was at the Meakins home, she called 9-1-1 to report that a man was attempting to enter the Meakins home. Ms. Lowry gave the dispatcher a description, and the dispatcher asked her to remain on the phone line until the police arrived. As Ms. Lowry waited, she looked out her window and saw the man walk down the front steps and into the Meakins' back yard.

Because West End Avenue in Ridgewood borders Glen Rock, police officers from both municipalities responded to the 9-1-1 call. Sergeant John Miller of Glen Rock drove to Lowell Road, a dead end street on the Ridgewood border, and parked his patrol car behind a Chevrolet Blazer later found to be registered to defendant. As Sergeant Miller searched for the man fitting the description given by the police dispatcher, Ridgewood Patrolman William Amoruso arrived at the Meakins' residence.

Amoruso testified that he had turned on his siren to rush to the scene and shut it off only about a block from West End Avenue. He went to the Meakins' front door to see if there was indication of a break-in. When he saw nothing to so indicate, he walked into the back yard to check the rear of the residence. As he approached the back door, he saw that the screen in the kitchen window had been cut in a U-shape. The window under the screen was wide open. There was nothing on the window sill, but three ceramic pots and a tray were placed on the outside deck next to another ceramic pot, leading Patrolman Amoruso to speculate that the pots had been removed preparatory to entering the house. Amoruso then called central dispatch on his portable radio to advise other units a break-in had occurred.

Meanwhile, Patrolman Miller was conducting his own search for the man identified in the original dispatch. As he walked through a side yard, he saw the defendant about fifty or seventy-feet away carrying a brown knapsack and a red bag. After the officer made eye contact with the defendant, he saw him turn, walk part way into a wooded area, toss the knapsack to the ground and walk back to the road. Patrolman Miller approached, identified himself and asked the defendant what he was doing. The defendant's response was, "Nothin', just walking."

It was at this moment that Patrolman Miller heard Patrolman Amoruso's transmission that a break-in had occurred through a back window at the Meakins' home. Miller placed the defendant under arrest, handcuffed him and walked him toward West End Avenue. At this point other Ridgewood police officers arrived to meet Patrolman Miller and the defendant. Miller handed the defendant over to Ridgewood Officer Heath James, who searched defendant and found a locking blade knife. The officers then secured the knapsack, red nylon bag and brown baseball cap defendant had discarded in the woods. In the knapsack were two knives, wire cutters, pliers, gloves and a knit hat with eye holes cut out. When Officers Amoruso and James drove the defendant to the Lowry residence, Ms. Lowry answered the door and said, "You guys got him." She then went to the police car and identified defendant as the man she saw earlier at the Meakins' front door.

Fiona Meakins testified she left her house at 12:30 p.m. to drop off her son at nursery school. She returned at 3:30 p.m. to see several police cars at her house. She was taken to the kitchen and shown the open window with the cut screen. She confirmed that the ceramic pot on the inside window sill had been moved. She reported nothing was missing from the house.

[State v. Gilreath, supra, slip op. at 2-5 (footnote omitted).]

In rejecting defendant's argument that his convictions were against the weight of the evidence, we had this to say:

A reasonable jury could certainly infer from the proofs of the slashed screen, open window and burglar tools possessed by defendant that he attempted to commit a burglary at the Meakins' residence and abandoned his plan only after being alerted by a police siren to an imminent police presence. Since defendant possessed a locking-blade knife with a four inch blade on his person, additional knives in the knapsack, burglar tools and a knit cap that could be used as a mask, a reasonable jury could determine defendant possessed the knives with the unlawful purpose of committing a burglary and could have used them as weapons. See, State v. Lee, 96 N.J. 156, 151 (1984). With respect to the conviction for hindering apprehension, the State's proofs could lead a reasonable jury to infer defendant attempted to conceal evidence of his crime by dropping the knapsack in a wooded area after he saw Patrolman Miller walking towards him. N.J.S.A. 2C:29-3b(1). In short, the State satisfied its burden of producing proofs from which inferences could be drawn by a reasonable jury to find defendant guilty beyond a reasonable doubt to the offenses charged. State v. Kittrell, 145 N.J. 112, 130 (1996); State v. Reves, 50 N.J. 454, 458-59 (1967); R. 3:18-1 and -2.

[Id. at 7-8.]

After one of defendant's prior convictions was reversed, he claimed he was no longer eligible for persistent offender status and he filed a motion to vacate his extended term. On May 6, 2005, defendant's motion was granted. He was resentenced to a five-year term on count one, which was consecutive to a Passaic County sentence; to an eighteen-month concurrent term on count two; and, on count three, to an eighteen-month term consecutive to counts one and two. Thereafter, on May 8, 2006, defendant's amended petition for PCR was filed.

In his amended PCR petition, defendant claimed he was entitled to be resentenced in accordance with State v. Natale, 184 N.J. 458 (2005). Defendant also alleged that his trial counsel was ineffective because: (1) "counsel failed to call [his] wife Blanca Gilreath to the witness stand in his defense at trial"; (2) "counsel failed to hold the State to its burden of proving each and every element of the offenses charged against him beyond a reasonable doubt by conceding that [he] was guilty of [criminal trespass]"; (3) "counsel committed numerous errors at trial rendering [defendant] deserving of a new trial on the basis of cumulative error"; and (4) defendant alleged that appellate counsel was ineffective for not raising "the issue of trial counsel's ineffectiveness on the direct appeal."

Following oral argument on November 17, 2006, the court rendered a comprehensive fourteen-page written decision. After analyzing each of defendant's arguments, the court rejected defendant's claim that his trial attorney and his appellate attorney were ineffective.

On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT II

THE MATTER SHOULD BE REMANDED FOR RE-SENTENCING UNDER STATE V. NATALE.

Based on our examination of the record and the briefs filed by the parties, we conclude defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the trial court, with only the following comments.

Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "First, the defendant must show that the counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must show that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).

As stated by the Strickland Court, "[j]udicial scrutiny of counsel's performance must be highly deferential" and "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The court will recognize a "strong presumption" that counsel provided "reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

In the present matter, the court concluded there was no showing by defendant that the performance of either his trial counsel or his appellate counsel was constitutionally deficient, and there was no showing that the allegedly deficient performance of counsel prejudiced his defense. Based on our review of the record, we are satisfied the court's findings are amply supported by the record and the matter was correctly decided. Accordingly, we affirm the order denying defendant's amended PCR petition substantially for the reasons stated by Judge Carroll in his written decision on November 17, 2006.

 
Affirmed.

(continued)

(continued)

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A-3078-06T4

December 5, 2008