STATE OF NEW JERSEY v. ZARIS D. TAYLOR

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5577-06T45577-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZARIS D. TAYLOR, a/k/a ZIRAS

TAYLOR, ZARRS TAYLOR,

Defendant-Appellant.

________________________________________

 

Submitted March 11, 2009 - Decided

Before Judges Stern and Rodr guez.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

97-04-1911.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jeffrey R. Jablonski, Designated

Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Kenneth P. Ply, Assistant Prosecutor,

on the brief).

PER CURIAM

Defendant was convicted by a jury of two counts of second-degree aggravated assault, unlawful possession of a handgun, and possession of the handgun for an unlawful purpose. He was found not guilty of the attempted murder of one of the two victims. Defendant was sentenced to two consecutive ten-year terms with five years to be served before parole eligibility on each aggravated assault conviction. The possession with intent conviction was merged, and he received a concurrent sentence on the permit violation. We affirmed the convictions on direct appeal.

On this appeal from the denial of post-conviction relief ("PCR"), defendant argues that he was denied effective assistance of counsel and an evidentiary hearing to develop that contention. He further argues that, if we do not vacate the conviction, we must order a new PCR hearing because he was deprived of effective assistance of PCR counsel.

Defendant points to three specific claims of ineffective assistance of trial and appellate counsel. The first deals with a reference in defendant's opening statement to the claim of self-defense which defendant claims was not presented to the jury in the absence of proof and the ability to call defendant to assert it. The other claims concerning prosecutor misconduct and an improper summation by the prosecutor were raised and rejected on direct appeal. See R. 3:22-5.

Defendant claims that he was prejudiced before the jury by a promise that he would demonstrate the justification of self-defense on which he had the burden of proof and could not present evidence, thereby affecting the credibility of the defense. Defendant advanced self-defense in his pretrial statement, but the trial judge ruled the statement was inadmissible due to a Miranda violation, and defendant could not testify due to his prior convictions. Therefore, defendant asserts his trial counsel should have known it was unlikely defendant would testify and be subject to impeachment by reference to his voluntary statement. Hence, defense counsel could never expect defendant to present the proof necessary for a claim of self-defense, and counsel had no basis for believing there would be an evidentiary basis for asserting it.

In his opening, defense counsel referred to the fact the victim Thurman Hobbs (also known as "Twan Simmons" and "Daniko") was called out of the apartment by defendant at which time Hobbs "pulled out a gun [and] once he pulled out that gun, a struggle a struggle ensued [and the victim] was shot in the stomach." Counsel then added that a six-year-old "was also shot by a stray bullet during the time the two men were fighting over the weapon." Counsel again referred to the "struggle" in his summation.

Defendant's counsel asserted self-defense in summation, and the trial judge gave the jury an instruction on the subject. As noted in our opinion on direct appeal, the victim "thought defendant was going to punch him, so he tried to punch [defendant] first." Hence, there does seem to have been a basis in the evidence for self-defense, and defendant obviously secured a conviction of a far less serious crime than attempted murder relating to victim Hobbs. Moreover, we already stated in our opinion on direct appeal:

We have reservations as to whether the proofs warranted a self-defense instruction at all. Defendant elected not to testify. If it should not have been given, defendant could not have been hurt by any error on that basis. State v. Carroll, 242 N.J. Super. 549, 563 (App. Div. 1990), certif. denied, 127 N.J. 326 (1991).

[Emphasis added.]

Furthermore, there was no other defense available to defend against the shootings which occurred when defendant arrived at the apartment and asked to see Hobbs. This is particularly true because a bullet struck an innocent six-year-old who was playing in the apartment. The reference to a "struggle" undoubtedly saved defendant from a conviction of attempted murder based on purposeful conduct.

The denial of PCR is affirmed.

(continued)

(continued)

4

A-5577-06T4

June 4, 2009