STATE OF NEW JERSEY v. JEFFREY PETTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1799-08T41799-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY PETTY,

Defendant-Appellant.

__________________________________

 

Submitted April 28, 2010 - Decided

Before Judges Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-11-3886.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jeffrey Petty appeals an order of the trial court dated August 8, 2008 denying his petition for post-conviction relief ("PCR"). For the reasons stated in this opinion, we affirm the dismissal of the PCR petition.

Following a jury trial in 1994 before Judge Betty Lester, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4, unlawful possession of a weapon, N.J.S.A. 2C:39-5B, and possession of a weapon for an improper purpose, N.J.S.A. 2C:39-4. At sentencing, Judge Lester granted the State's motion for an extended term of imprisonment and imposed an aggregate forty-year prison term, with twenty years of parole ineligibility.

According to the evidence adduced at trial, the homicide victim, Eric Plummer, was caught in the cross-fire of gunshots fired by two combatants in the lobby of a Newark housing project on August 17, 1993. The State's proofs indicated that on that date, Plummer entered the lobby of the building to buy drugs from defendant or his associates. During this time, defendant spotted Kevin Bishop, a drug dealer who had tried to rob him during the previous week. According to the State's witnesses, defendant went to his apartment in the building and retrieved an Uzi (or Uzi-like) weapon which he then used to fire multiple shots towards Bishop. Bishop returned fire, shooting into the lobby. As the victim tried to flee from the lobby, he was hit by a bullet and died.

On defendant's direct appeal in 1996, this court remanded the matter to have the trial judge further consider the admissibility of inculpatory prior inconsistent statements by Brian Wiggins, a witness called at trial by the State. Wiggins originally told the police that he had seen defendant fire the shots that hit the victim, but he later recanted those accusations at trial. We remanded for a continuation of the N.J.R.E. 104 hearing required by State v. Gross, 121 N.J. 18 (1990), to determine the reliability of Wiggins's prior statements. In our opinion, we indicated that if the State established the reliability of the statement that Wiggins originally gave to the police, then defendant's conviction would stand. However, if the trial court on remand determined that the statement Wiggins made to the police was not properly admitted, then defendant was entitled to a new trial. State v. Petty, No. A-6032-93 (App. Div. Mar. 25, 1996) (slip op. at 5).

On remand, the trial court confirmed that Wiggins's former statement was properly admitted. Defendant appealed that determination. In our second opinion, on October 11, 2000, we found that the trial judge had properly carried out our instructions, and affirmed the judge's ruling that the prior inconsistent statement by Wiggins was reliable and admissible. State v. Petty, No. A-2618-98 (App. Div. Oct. 11, 2000) (slip op. at 6), certif. denied, 167 N.J. 629 (2001).

Defendant then filed a PCR petition. In his petition, defendant mainly alleged that his original trial attorney and that attorney's partner who represented him at trial were constitutionally ineffective because they failed to pursue an alibi defense. He also contended that his counsel refused to speak with him before trial. He further asserted a generalized claim that the State violated its discovery obligations before trial, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963).

During oral argument on July 29, 2005, defendant's PCR attorney persuaded Judge Lester to conduct an evidentiary hearing to determine if defendant's trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), for failing to prepare the case and for failing to present alibi witnesses. Over three intermittent days in 2005 and 2006, Judge Lester presided over that evidentiary hearing, taking testimony from several witnesses, including defendant, both of his former trial attorneys, his mother Eulla Petty, Francis Reilly, an investigator for the Public Defender's Office, and four alleged alibi witnesses: Yolanda Howard (defendant's girlfriend), Peggy Howard (Yolanda's mother), Marad Holder (Yolanda's brother), and Fuquan Mosley (a friend of defendant).

After considering these proofs at the PCR hearing, Judge Lester concluded in a written opinion dated August 8, 2008 that the Strickland standards were not violated and therefore dismissed the PCR petition.

Among other things, Judge Lester found incredible defendant's claim that his former trial counsel refused to pursue an alibi defense. The judge underscored several inconsistencies in the factual accounts of three of the alleged alibi witnesses. Given those inconsistencies, and the close relationships between defendant and the alibi witnesses, Judge Lester found that an experienced criminal defense attorney "could have fairly concluded that a weak alibi could cause more harm than good." The judge also rejected defendant's vague Brady claim.

In appealing the PCR denial, defendant notes, among other things, that Judge Lester's opinion is silent as to the fourth alibi witness, Fuquan Mosley, who claimed that he had been on the phone with defendant in Yolanda's apartment when the shots rang out in the lobby. Mosley claims that he had seen a man wearing a trenchcoat, with what appeared to be a gun bulging from one of its pockets, standing outside the housing unit. He testified that he warned defendant on the telephone not to go outside. If the jury had believed Mosley's account, that might have supported defendant's claim that he was not present in the lobby when the shots were fired.

However, in summations at the PCR hearing, the prosecutor asserted that Mosley was not credible for several reasons. First, he was inconsistent in his testimony about the timing of his interactions with defendant. In addition, he did not report his observations of the man with the bulging trenchcoat to the police. And, as we have already noted, Mosley could have been readily impeached by the prosecutor as a biased witness, because he was defendant's friend.

Even assuming, for the sake of argument, that Mosley's testimony hypothetically could have supported defendant's alibi claim, we nevertheless are satisfied that there is substantial credible evidence that supports Judge Lester's findings that: (1) she "did not find credible" that the "experienced trial attorney" who originally represented defendant had "ignored and/or failed to investigate alibi witnesses;" (2) that defendant was aware prior to his trial date that his attorney "was not going to present an alibi defense," and (3) that defendant had failed at that time to "bring to his [trial counsel's] and the [c]ourt's attention that his defense had been disregarded." We shall not second-guess those ultimate factual determinations by the trial judge, who clearly had a "feel for the case," both from the trial and the ensuing evidentiary hearing on the PCR application. See State v. Locurto, 157 N.J. 463, 470 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

In sum, we agree with Judge Lester that defendant was not unconstitutionally deprived of the effective assistance of counsel. As our Supreme Court has reaffirmed, "'an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). "'[S]trategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantees of a fair trial.'" Ibid. Based on the record before us and the well-reasoned findings made by Judge Lester, this is simply not such a "rare instance."

The balance of defendant's arguments, including his claim of a Brady violation, lack sufficient evidence to warrant discussion in this written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-1799-08T4

July 6, 2010