STATE OF NEW JERSEY v. SIMON LAU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2836-05T42836-05T4

A-3060-05T4

A-4789-05T4

A-6024-05T4

STATE OF NEW JERSEY, A-6404-05T4

A-4472-06T4

Plaintiff-Respondent,

v.

CHO LEE LIN

Defendant-Appellant.

_________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY ZHU,

Defendant-Appellant.

________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHAO LIN FENG,

Defendant-Appellant.

________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

XIN DAN LIN,

Defendant-Appellant.

_________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SIMON LAU,

Defendant-Appellant.

_________________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YUN LIN,

Defendant-Appellant.

_________________________________________

 

Submitted February 1, 2010 - Decided

Before Judges Rodr guez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 94-06-0644.

Yvonne Smith Segars, Public Defender, attorney for appellant Cho Lee Lin (Philip Lago, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Jeffrey Zhu (Richard Sparaco, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Chao Lin Feng (Richard W. Berg, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Xin Dan Lin (Patricia Drozd, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Simon Lau (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant Yun Lin (Jack Gerber, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the briefs).

Appellants Jeffrey Zhu and Simon Lau filed pro se supplemental briefs.

PER CURIAM

Defendants Cho Lee Lin, Jeffrey Zhu, Chao Lin Feng, Xin Dan Lin, Simon Lau, and Yun Lin appeal from the denial of their respective petitions for post-conviction relief (PCR). We affirm.

Defendants were jointly tried and convicted of four counts of purposeful and knowing murder, two counts of attempted murder, five counts of felony murder, two counts of kidnapping, one count of burglary, one count of attempted arson, and various weapons offenses. Following the entry of the verdicts, defendants moved for a new trial. Judge William C. Meehan denied the motions and imposed sentences. With the exception of defendant Zhu, who received an aggregate sentence of four life terms with 120 years of parole ineligibility, each defendant received an aggregate sentence of four life terms plus forty years, with 140 years of parole ineligibility. We affirmed. Nos. A-4025-95T4, A-4196-95T4, A-5041-95T4, A-5065-95T4, A-5073-95T4, and A-5077-95T4 (App. Div. April 5, 1999), aff'd, State v. Zhu, 165 N.J. 544 (2000).

These were the salient proofs at trial. Defendants were members of Fuk Ching, a Chinese gang operating in the New York area. Among other activities, the gang smuggled people from China into the United States. The Fuk Ching would hold the smuggled aliens in a "safe house" until a sum of money between $20,000 and $30,000 had been paid.

At some point, there was a falling out between Fuk Ching's leader, Ah Kay, and another gang member, co-defendant Xin Dan Lin. As a result, Ah Kay ordered the killing of Xin Dan Lin. Two gang members were killed in New York, but Xin Dan Lin managed to escape when the gun held to his head jammed. Ah Kay decided to hide out. He left his brother Ah Wong in charge of the gang and a safe house on Somerset Road in Teaneck. Ah Wong lived in the house and was responsible for handling all arrangements there. At the time of the murders, there were four gang members living in the house along with one of the smuggled aliens. It was Ah Wong and these four gang members who became defendants' victims on the evening of May 24, 1993. The alien, Lin Ling Chang, was the only survivor. He identified defendants Xin Dan Lin, Yun Lin, Chao Lin Feng, and Cho Lee Lin as among those who committed the murders and who attempted to murder him.

According to Lin Ling Chang, earlier in the day, three of the four resident gang members had left the house, leaving one gang member, Liang Qun Guo (also a brother of Ah Kay), with Lin Ling Chang. While Lin Ling Chang was in the kitchen, he heard the doorbell ring. Liang Qun Guo went to the door and moments later a number of people entered the kitchen. One of the defendants pointed a gun at Lin Ling Chang's head. Liang Qun Guo started to fight with the intruders. Gunshots were fired. Both Lin Ling Chang and Liang Qun Guo were shot. They were dragged to the basement, tied, and duct taped.

On the evening of May 24, 1993, Ming Cheng, a member of Fuk Ching and Ah Wong's bodyguard, drove from New York to Teaneck with Ah Wong and two other gang members, Yu Ping Zhang and Guang Sheng Li. Upon their arrival, they found the house locked, and no one answered the doorbell. Yu Ping Zhang and Guang Sheng Li gained entrance to the house through a window in the back. Ming Cheng went to the front door. He was not aware of how Guang Sheng Li got inside the house.

After Ming Cheng and Ah Wong had returned to the front door, the door opened and Ming Cheng heard a gunshot. He pushed the door open and saw Xin Dan Lin with a gun and several other persons on the stairs inside. He warned Ah Wong and they both ran, but in opposite directions. Ming Cheng ran two or three blocks and hid in some bushes. He saw Ah Wong lying on the ground with three people standing over him and then heard some gunshots.

Alan Tam, one of the main witnesses against defendants, was a member of the Fuk Ching. He pled guilty in federal court to charges related to the killings and agreed to testify at this trial. Alan Tam testified that in early April 1993, he spent several days at an apartment in Brooklyn where Simon Lau, Chao Lin Feng, and Jeffrey Zhu attempted to recruit him to participate in the murder of Ah Wong. The motivation behind this plot was to gain control of the alien smuggling business and to strike back for the attempted killing of Xin Dan Lin. Alan Tam met with Ah Wong four days before the killing. He did not warn Ah Wong of the murder plot against him.

Tu Wei Chung was also a member of the Fuk Ching gang. Like Tam, he testified for the State pursuant to a plea agreement on federal charges. He corroborated Tam's testimony.

Rhonda Spencer lived in the neighborhood. She testified that shortly after 7:00 p.m., while sitting in front of her residence, she heard something that sounded like glass breaking. She also heard about four gun shots and ran down to find her younger brother who was playing on a nearby street. She saw a group of men running across a lawn. While this group of men was running, she saw another man, with a black stadium jacket, get into a blue van. The van then picked up the men who were running.

Teaneck Police Detective Kenneth Croonquist was the first police officer to arrive at the scene. Upon arrival, he approached the front door, peered in, and saw an Asian male apparently dead. A small weapon was partially under the victim's legs. Sergeant Croonquist saw knives and handguns scattered about the house. A second victim was found in the hallway, lying on his side with no pulse. Two more victims were found on the floor of the basement. Each of these victims were handcuffed and had duct tape over their mouths. One of them, Lin Ling Chang, survived. Among the assassins, Ah Wong, Guang Sheng Li, Yu Ping Zhang and Liang Qun Guo died. Ming Cheng escaped.

Teaneck Police Officer Frank Cox was on patrol in a marked police car with Officer Kenneth Porrino. Upon hearing a police broadcast of a multiple shooting in Teaneck, they drove to the toll plaza at the George Washington Bridge. At 7:33 p.m., they saw a blue van with Asian males, which fit the description provided in the SPEN emergency broadcast, approaching the toll plaza. They pulled up close behind the van, turning on the overhead lights and siren. Officer Kevin Mahon used his public announcement system to instruct the driver to throw the keys out of the window and to come out of the van. The driver was defendant Jeffrey Zhu.

PCR Petition of Cho Lee Lin

Cho Lee Lin filed pro se a PCR petition. Michael G. Paul, Esq., represented Cho Lee Lin at the PCR hearing. Judge Meehan conducted a hearing and denied the petition.

Defendant Cho Lee Lin appeals contending:

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Failed To Adequately Investigate The Case, Resulting In An Incomplete Defense.

B. Trial Counsel Rendered Ineffective Assistance Of Counsel By Failing To Obtain And Present An Expert On Chinese Alien Smuggling And Chinese Gangs.

C. Trial Counsel Rendered Ineffective Assistance Of Counsel By Failing To Request That Defendant's Case Be Tried Separately From The Co-Defendants.

D. Trial Counsel Failed To Impeach The Testimony Of Chang Despite The Ready Availability Of Evidence Contrary To His Testimony.

E. Trial Counsel Rendered Ineffective Assistance Of Counsel By Failing To Exercise Peremptory Challenges Against Biased Jurors.

F. Trial Counsel Failed To Inform Defendant Of His Rights To Consular Access Under The Vienna Convention, Thereby Rendering Ineffective Assistance Of Counsel.

G. Trial Counsel Rendered Ineffective Assistance By Failing To Have The Jury Sequestered.

H. Trial Counsel Failed To Object To The Trial Court's Destruction Of Jury Questionnaires.

I. Trial Counsel Failed To Move For A Change Of Venue.

J. The Conduct Of The Sheriff's Office Violated Defendant's Right To Effective Assistance Of Counsel, By Inducing And Directly Contributing To Many Of Trial Counsel's Errors.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS WAS VIOLATED BY THE STATE'S FAILURE TO COMPLY WITH THE VIENNA CONVENTION OF CONSULAR RELATIONS.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY ADMITTING INTO EVIDENCE HIGHLY PREJUDICIAL AUTOPSY PHOTOS.

THE PROSECUTOR'S FAILURE TO DISCLOSE THE NATURE AND DETAILS OF THE PLEA AGREEMENT BETWEEN THE FEDERAL GOVERNMENT AND ALAN TAM AND HENRY TU DENIED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE CONFRONTATION CLAUSE.

THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY UNDER BOTH THE STATE AND FEDERAL CONSTITUTION BY FAILING TO CONDUCT THE NECESSARY VOIR DIRE AND DISALLOWING DEFENDANT FROM HAVING MEANINGFUL INPUT INTO THE PROCESS.

A. Defendant Was Denied His Own Copy Of The Prospective Juror Questionnaires.

B. Defendant Was Denied The Opportunity To Question Prospective Jurors.

C. The Trial Court Improperly Limited The Scope Of Questioning During Voir Dire And Delegated Questioning To The Jury Commissioner.

D. The Trial Judge Failed To Properly Conduct An Adequate Voir Dire.

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO IMPANEL IMPARTIAL JURORS TO HEAR AND DECIDE THE CASE.

THE TRIAL COURT IMPROPERLY DESTROYED JUROR QUESTIONNAIRES, CONTRARY TO N.J.S.A. 2B:20-12, THEREBY DEPRIVING DEFENDANT OF HIS ABILITY TO PROPERLY CHALLENGE THE VOIR DIRE.

THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE BECAUSE IT IS EXCESSIVE AND CONSECUTIVE.

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

We are not persuaded by these arguments.

At the outset, we note that the State had a strong case. There were two eyewitnesses to the massacre: Lin Ling Chan and Ming Cheng. They were both familiar with all defendants. Identity was not an issue. In addition, Alan Tam and Wai Chung, who had prior knowledge of the conspiracy, testified for the State. Against this background, defense counsel had little proof or arguments to counter the evidence against defendants. From our careful review of the record, we note that counsel vigorously participated in the trial, cross-examining witnesses and making arguments on behalf of their clients. Moreover, there was ample evidence of defendants' guilt.

We also note that several of the challenges in this appeal, and those of co-defendants, are procedurally barred because they were not raised on direct appeal. Thus, by virtue of Rule 3:22-4, Bar on Grounds Not Raised in Prior Proceedings, the following challenges are not properly before us: failure to comply with the Vienna Convention; admission of autopsy photographs; failure to discuss plea agreements between the federal government and Alan Tam and Henry Tu; conduct of jury voir dire and impaneling of jurors; destruction of juror questionnaires; and the imposition of consecutive sentences.

Defendant Cho Lee Lin contends that he was denied the effective assistance of trial counsel because his attorney failed to adequately investigate the case. He makes a generic assertion that if trial counsel had properly investigated the matter, there may have been a different result.

A charge of ineffective assistance of counsel must be evaluated according to the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant seeking to vacate a conviction on the grounds of ineffective assistance of counsel must prove that counsel's performance was deficient and that such deficient performance prejudiced the defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A strong presumption exists that counsel's performance "falls within the wide range of reasonable professional assistance" and thus, judicial scrutiny must be highly deferential. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

It is well-settled that when arguing that counsel failed to conduct a pre-trial investigation or interview witnesses a defendant "must do more than make bald assertions [of denial of] the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When a defendant alleges that his or her attorney inadequately investigated the case, the defendant must assert facts that "an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. See also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness).

If a PCR claimant establishes a prima facie case of ineffective assistance, then, and only then, is the claimant entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).

Here, Cho Lee Lin did not make a prima facie showing of ineffective assistance. He has not presented an affidavit or certification to support his assertions. Cummings, supra, 321 N.J. Super. at 170. He is not entitled to relief.

Cho Lee Lin also argues that his trial attorney was ineffective because he did not obtain and present an expert on Chinese alien smuggling and Chinese gangs. Lin does not provide an expert report; thus, based on his bold assertions alone, defendant has failed to establish that the testimony of an expert would have exonerated him. Ibid. Therefore, Cho Lee Lin has again failed to show entitlement to an evidentiary hearing.

Finally, Cho Lee Lin contends that his trial attorney erred by failing to seek a severance of his case. However, there was no basis for severance. Therefore, he has failed to meet the standard for establishing ineffective assistance.

As to the Vienna Convention issue, we have held that the VCCR requires a State to notify a foreign consulate about an alien defendant's arrest. State v. Cevallos-Bermeo, 333 N.J. Super. 187 (App. Div.), certif. denied, 165 N.J. 607 (2000). Regardless of whether or not defendant had an individual right to assert the protections of the Convention, unless he was prejudiced by the prosecution's failure to notify his nation's consulate about the prosecution, his conviction would not be overturned. Id. at 187-88. Here, Cho Lee Lin did not meet the burden of proving that he was prejudiced by the State's failure to alert the Chinese Consulate of his arrest and prosecution.

PCR Petition of Jeffrey Zhu

Jeffrey Zhu filed pro se a PCR petition. Laura Sutnick, Esq., represented Zhu. She filed a supplemental brief. Judge Meehan denied the petition.

Jeffrey Zhu appeals contending:

DEFENDANT'S MOTION FOR [PCR] SHOULD HAVE BEEN GRANTED ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE FOR TRIAL BY FAILING TO RESEARCH THE BENEFITS THE COOPERATING WITNESSES WERE RECEIVING FROM THEIR RESPECTIVE AGREEMENTS WITH FEDERAL PROSECUTORS.

DEFENDANT'S MOTION FOR [PCR] SHOULD HAVE BEEN GRANTED DUE TO PROSECUTORIAL MISCONDUCT FROM THE STATE'S FAILURE TO DISCLOSE TO DEFENDANT THE FULL NATURE OF THE COOPERATING AGREEMENTS TU AND TAM HAD STRUCK WITH THE [U.S.] ATTORNEY.

THE JURY SELECTION PROCESS WAS FLAWED AND THE COURT COMMITTED REVERSIBLE ERROR BY NOT CONDUCTING A THOROUGH VOIR DIRE OF THE IMPANELED JURY, THEREBY VIOLATING DEFENDANT'S RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY AS GUARANTEE[D] BY THE SIXTH AND FOURTEEN AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION, 1 947 ART. 1, PAR. 10.

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO HAVE THE JURY SEQUESTERED.

DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S DESTRUCTION OF JURY QUESTIONNAIRES.

TRIAL COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO MOVE FOR A CHANGE OF VENUE.

THE IN-COURT AND OUT-OF-COURT CONDUCT OF THE SHERIFF'S DEPARTMENT VIOLATED THE DEFENDANT'S RIGHT TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.

THE DEFENDANT SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING.

Jeffrey Zhu filed a pro se supplementary brief contending:

THE DEFENDANT'S CLAIMS ARE NOT BARRED BY PROVISIONS OF RULE 3:22 AS THEY ASSERT ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.

THE ENTIRE JURY SELECTION PROCESS WAS FLAWED AND THE COURT COMMITTED REVERSIBLE ERROR BY NOT CONDUCTING A THOROUGH VOIR DIRE OF THE IMPANELED JURY, THEREBY VIOLATING DEFENDANT'S RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY AS GUARANTEE BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION, 1 947 Art. 1, Par. 1).

TRIAL COURT COMMITTED REVERSIBLE ERROR BY PRECLUDING COUNSEL FROM CONDUCTING SIDE BAR CONFERENCES DURING THE TRIAL AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, DENIED HIM HIS RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION.

THE TRIAL COURT'S CHARGE ON KIDNAPPING WHICH FAILED TO CONVEY TO THE JURY THAT THE STATE MUST PROVE EACH ELEMENT OF KIDNAPPING BEYOND A REASONABLE DOUBT, DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL (U.S. Const. Amends, VI, XIV).

THE TRIAL COURT'S FAILURE TO DISMISS THE BURGLARY COUNT OF THE INDICTMENT VIOLATED PETITIONER'S RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND THE NEW JERSEY STATE CONSTITUTION.

THE STATE'S SUPPRESSION OF FAVORABLE EVIDENCE TO THE DEFENDANT AND KNOWING USE OF PERJURES TESTIMONY IS A VIOLATION OF THE RULES OF DISCOVERY AND PROSECUTORIAL MISCONDUCT, THEREBY VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS RIGHTS SECURED BY THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION.

THE COURT'S REFUSAL TO TAKE CONTROL OF THE COURTROOM AND RULES ON OBJECTIONS BY DEFENSE DENIED PETITIONER THE RIGHT TO CONFRONT WITNESSES, A FAIR TRIAL, AND EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEE (sic) BY THE SIXTH AND FOURTEEN AMENDMENTS OF THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION, 1 947 Art. 1, PAR. 10.

THE PROSECUTOR'S COMMENTS AND CONDUCT DURING THE ENTIRE TRIAL WERE SO EGREGIOUS AND INFLAMMATORY AS TO DEFER THE JURY FROM A FAIR CONSIDERATION OF THE EVIDENCE AND DEPRIVED PETITIONER OF A FAIR TRIAL AND DUE PROCESS OF LAW UNDER THE UNITED STATES CONSTITUTION Amends, V, VI, AND XIV; New Jersey Constitution (1947) Art. I, Pars. 1, 10, AND 12.

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION DUE TO APPELLATE COUNSEL'S FAILURE TO RAISE OBVIOUS ISSUES OF TRIAL ERROR.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING PETITIONER'S MOTION TO VOIR DIRE THE JURY REGARDING PUBLISHED PREJUDICIAL INFORMATION, THEREBY VIOLATING PETITIONER'S RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY AS GUARANTEED BY SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES AND THAT OF THE NEW JERSEY CONSTITUTION, 1 947 Art. 1, Par. 10.

CUMULATIVE ERRORS.

AN EVIDENTIAL HEARING IS REQUIRED ON THIS MATTER.

In petitioner's first Addendum to his pro se brief, the following issues were raised:

PETITIONER WAS DENIED DUE PROCESS AND THE RIGHT TO A TRIAL BY A FAIR AND IMPARTIAL JURY UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

PETITIONER'S RIGHTS TO DUE PROCESS AND IMPARTIAL JURY UNDER THE UNITED STATES CONSTITUTION AMENDMENT SIX AND FOURTEENTH WERE DENIED DUE TO TRIAL COURT'S ARBITRARY DEPRIVATION OF PETITIONER'S STATUTORY RIGHT TO JURY SELECTION AND HIS RIGHT TO INTELLIGENTLY CHALLENGE JURORS FOR CAUSE AND EXERCISE PEREMPTORY CHALLENGES.

PETITIONER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO EXERCISE PEREMPTORY CHALLENGES TO STRIKE JURORS DONNA RAKOWSKI, ELAINE O'BRIEN AND ALMA REAVIS WHICH RESULTED IN BIASED JURORS ON PETITIONER'S JURY, THEREBY DEPRIVING PETITIONER THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW, AND A FAIR AND IMPARTIAL JURY UNDER THE U.S. CONSTITUTIONAL AMENDS. V, VI & XIV; N.J. CONST. (1947) Art. 1, Pars. 1, 9, 10.

In petitioner's second addendum to his pro se brief he raised:

THE TRIAL COURT'S CHARGE ON ACCOMPLICE LIABILITY WHICH FAILED TO ADEQUATELY CONVEY TO THE JURY THAT IN ANY OR ALL OF THE OFFENSES CHARGED, THE ACCOMPLICE COULD BE FOUND GUILTY TO A LESSER DEGREE THAN THE PRINCIPAL, BASED ON THE ACCOMPLICE'S OWN INDIVIDUAL MENTAL STATE, ERODED THE PROSECUTION'S BURDEN TO PROVE GUILT BEYOND A REASONABLE DOUBT, RENDERED PETITIONER'S TRIAL FUNDAMENTALLY UNFAIR IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AMENDMENTS SIX AND FOURTEENTH. (Const. Amends. VI, XIV).

With the exception of the alleged deficiencies of trial counsel, all of these issues are procedurally barred by Rule 3:22-4. In addition, we have considered defendant's ineffective assistance of counsel claims and find they are without sufficient merit to warrant discussion in a written opinion, aside from our analysis and conclusions in addressing Cho Lee Lin's appeal. R. 2:11-3(e)(2).

PCR Petition of Chao Lin Feng

Defendant Chao Lin Feng filed a pro se PCR petition. Craig S. Leeds, Esq. was appointed to represent him. Judge Meehan denied the petition.

Chao Ling Feng appeals contending:

THE STATE'S FAILURE TO COMPLY WITH THE VIENNA CONVENTION ON CONSULAR RELATIONS INFRINGED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS.

DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL WAS INFRINGED IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS, AND HE WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, FUNDAMENTAL FAIRNESS[,] AND A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT, FAILURE TO PROVIDE DISCOVERY, FAILURE TO CHARGE PASSION/PROVOCATION MANSLAUGHTER, AND PRECLUSION OF SIDEBAR CONFERENCES.

A. Failure To Advise Or Seek Redress For Violation Of VCCR.

B. Prosecutor's Failure To Provide Discovery And Counsel's Failure To Investigate Alan Tam And Henry Tu.

C. Failure To Obtain Instructions On Passion/Provocation Manslaughters Or Imperfect Self-Defense.

D. The Trial Court Deprived Defendant Of A Fair Trial By Precluding Sidebar Conferences, and Appellate Counsel's Failure To Raise This Issue On Direct Appeal Constituted Ineffective Assistance Of Counsel.

THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

THE SENTENCE IMPOSED IS ILLEGAL, UNCONSTITUTIONAL[,] AND EXCESSIVE, AND FAILURE OF TRIAL, APPELLATE[,] AND PCR COUNSEL TO PROPERLY RAISE THESE CLAIMS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

All of these issues are procedurally barred by Rule 3:22-4, with the exception of the alleged ineffective assistance by trial counsel in a written opinion, aside from our analysis and conclusions are the same as in our review of Cho Lee Lin's appeal. R. 2:11-3(e)(2).

PCR Petition of Xin Dan Lin

Xin Dan Lin filed a pro se PCR petition. Theodore Sliwinski was appointed to represent him. Judge Meehan denied the petition.

On appeal, Xin Dan Lin contends:

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS [PCR] ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.

THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE ILLEGAL SENTENCE.

The sentence issue is barred by Rule 3:22-4. In addition, defendant's ineffective assistance of counsel claims are without sufficient merit to warrant a written opinion, aside from our analysis and conclusions are the same as our analysis and conclusions in addressing Cho Lee Lin's appeal. R. 2:11-3(e)(2).

PCR Petition of Simon Lau

Simon Lau filed pro se a PCR petition. Lisa Nabipou, Esq., a pro bono attorney with the Freedom Forum of New York City, filed a supplemental PCR petition and Edgar F. Devine, Jr., Esq., served as Designated Counsel. Judge Meehan denied the petition. On appeal, Simon Lau contends:

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

A. Trial Counsel Failed To Adequately Impeach The Testimony Of Alan Tam And Henry Tu.

B. Trial Counsel Failed To Move That Defendant's Trial Be Severed From His Codefendants' Trial.

C. Trial Counsel Failed To Exercise Peremptory Challenges Of Biased Jurors.

D. Trial Counsel Failed To Inform Defendant Of His Rights To Consular Access Under The Vienna Convention.

E. Trial Counsel Failed To Move To Have The Jury Sequestered.

F. Trial Counsel Failed To Object To The Trial Court's Destruction Of Jury Questionnaires.

G. Trial Counsel Failed To Move For A Change Of Venue.

H. The Conduct Of The Sheriff's Officers Violated Defendant's Right To Effective Assistance Of Counsel, By Inducing And Directly Contributing To Many Of Trial Counsel's Errors.

THE LOWER COURT ORDER DENYING THE PCR PETITION MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS WAS VIOLATED BY THE STATE'S FAILURE TO COMPLY WITH THE VIENNA CONVENTION OF CONSULAR RELATIONS.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY ADMITTING INTO EVIDENCE HIGHLY PREJUDICIAL AUTOPSY PHOTOS.

THE PROSECUTOR'S FAILURE TO DISCLOSE THE NATURE AND DETAILS OF THE PLEA AGREEMENT BETWEEN THE FEDERAL GOVERNMENT AND ALAN TAM AND HENRY TU DENIED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION.

THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS BY FAILING TO CONDUCT THE NECESSARY VOIR DIRE AND DISALLOWING DEFENDANT FROM HAVING MEANINGFUL INPUT INTO THE PROCESS.

A. Defendant Was Denied His Own Copy Of The Prospective Juror Questionnaires.

B. Defendant Was Denied The Opportunity To Question Prospective Jurors.

C. The Trial Court Improperly Limited The Scope Of Questioning During Voir Dire And Delegated Questioning To The Jury Commissioner.

D. The Trial Court Failed To Properly Conduct An Adequate Voir Dire.

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO IMPANEL IMPARTIAL JURORS TO HEAR AND DECIDE THE CASE.

THE TRIAL COURT IMPROPERLY DESTROYED JUROR QUESTIONNAIRES, CONTRARY TO N.J.S.A. 2B:20-12, THEREBY DEPRIVING DEFENDANT OF HIS ABILITY TO PROPERLY CHALLENGE THE VOIR DIRE.

THE FINE IMPOSED WAS ILLEGAL.

DEFENDANT'S CLAIMS WERE NOT BARRED UNDER RULE 3:22-5.

Simon Lau filed pro se a supplemental brief contending:

INCREASING APPELLANT'S VIOLENT CRIMES COMPENSATION BOARD PENALTY FROM $1,050.00 INCLUDED WITH A $400,000.00 FINE WITH OUT PROOF IN THE RECORD THAT APPELLANT POSSESS THE ABILITY TO PAY SUCH GROSS FINE VIOLATIONS THE FUNDAMENTAL PRINCIPALS OF DOUBLE JEOPARDY AND FUNDAMENTAL FAIRNESS UNDER THE U.S. CONST. 14TH AMEND. AND N.J. CONST. ART. 1. 12.

THE DISPARITY OF THE $400,000.00 IMPOSITION FINE/PENALTY IN THE CASE AT BAR CONTRARY TO ANY OF APPELLANT'S CO-DEFENDANTS IS NOT GERMANE TO ANY OF APPELLANT'S CHARACTERISTICS AND ABILITY TO PAY SUCH EXCESSIVE AND ABUSIVE FINE AND CONTRARY TO APPELLANT'S U.S. CONST. 14TH AMEND. RIGHTS AND N.J. CONST. ART. 1 12 RIGHTS AND MUST BE VACATED BECAUSE OF THE DISPARITY IN IMPOSING ANY FINES/PENALTIES UPON APPELLANT'S CO-DEFENDANTS OUTSIDE THE USUAL V.C.C.B. ASSESSMENT PENALTIES.

APPELLANT SUBMIT THAT THE COURT WAS IN ERROR IN ITS RELIANCE OF AGGRAVATING FACTOR NINE CONTRARY TO STATE V. DUNBAR, INFRA. AND STATE V. PENNINGTON, INFRA. AND MUST COME INTO COMPLIANCE WITH STATE V. PIERCE, INFRA., WITH PREJUDICE. SEE ALSO APPRENDI V. NEW JERSEY, INFRA., BLAKELY V. WASHINGTON, INFRA.

With the exception of the challenges to the assistance rendered by trial and appellate counsel, these issues are barred on PCR by virtue of Rule 3:22-4. As to the ineffective assistance claims, these claims are without sufficient merit to warrant a written opinion, aside from our analysis and conclusions are the same as our analysis and conclusions in addressing Cho Lee Lin's appeal. R. 2:11-3(e)(2).

PCR Petition of Yun Lin

Yun Lin filed a pro se PCR petition and Craig R. Weis, Esq., submitted a brief on his behalf. He waived counsel for the PCR hearing. Judge Meehan denied the petition.

On appeal, Yun Lin contends:

THE CONVICTIONS MUST BE VACATED AS THE TRIAL WAS CONDUCTED IN AN ATMOSPHERE TANTAMOUNT TO "GUILT BY ASSOCIATION."

THE CONVICTIONS MUST BE VACATED AS THE DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO AN IMPARTIAL JURY PANEL AND THE EFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO EXERCISE PEREMPTORY CHALLENGES TO DISMISS JURORS HAVING QUESTIONABLE IMPARTIALITY.

We disagree. These claims are procedurally barred by Rule 3:22-4.

In sum, following the Strickland/Fritz standard, our review of the record does not disclose any deficiency by any of the trial, appellate, or PCR counsels. Further, there is overwhelming evidence that defendants committed the crimes of which they were convicted. Moreover, even if we assumed that, in some respects, defense counsel's representation of any of the defendants was deficient, defendants failed to establish the defendants would have been found not guilty of the charges of their attorneys had handled the matter differently.

 
Affirmed.

Vienna Convention of Consular Relations (VCCR), Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101.

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A-2836-05T4

April 6, 2010