STATE OF NEW JERSEY v. JUSTIN LACY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2088-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUSTIN LACY,

Defendant-Appellant.

_______________________________

SubmittedMay 18, 2011 Decided July15, 2011

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0502.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Justin Lacy appeals from a May 20, 2009 order denying his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing. On appeal defendant argues:

POINT ONE

THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, BECAUSE THE DEFENDANT'S TRIAL ATTORNEY FAILED TO (1) CROSS-EXAMINE POLICE WITNESSES ABOUT THE LACK OF FINGERPRINT ANALYSIS OF BULLET CASINGS AND (2) FAILED TO PRESENT CHARACTER WITNESSES ON THE DEFENDANT'S BEHALF. (PARTIALLY RAISED BELOW).

POINT TWO

THE DEFENDANT SHOULD HAVE RECEIVED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BASED ON THE COUNSEL'S FAILURE TO (1) CROSS-EXAMINE POLICE WITNESSES ABOUT THE LACK OF FINGERPRINT ANALYSIS OF BULLET CASINGS AND (2) TO PRESENT CHARACTER WITNESSES ON THE DEFENDANT'S BEHALF. (NOT RAISED BELOW).

We affirm.

A jury found defendant guilty of attempted murder, two counts of second-degree aggravated assault, third-degree possession of a weapon and second-degree possession of a weapon for an unlawful purpose. After merger, Judge Thomas R. Vena sentenced defendant to an aggregate term of incarceration of nineteen years subject to the 85% period of parole ineligibility set forth in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with applicable fines and assessments.

In an unpublished opinion, we affirmed defendant's conviction and sentence on direct appeal and certification was denied. State v. Lacy, No. A-5192-05 (App. Div. March 4, 2008) (slip op. at 19), certif. denied, 195 N.J. 422 (2008).

Defendant filed a pro se petition for PCR alleging ineffective assistance of counsel. Counsel was assigned and the PCR submission was supplemented. Defendant generally asserted "counsel failed to provide him with paperwork from his case which was necessary in order for him to assist in the preparation of trial"; neglected legal challenges to an alleged failure to receive Miranda1 rights, identification and the State's omission in checking fingerprinting evidence; and the failure to investigate potential witnesses. Following oral argument, Judge Vena issued a written opinion denying defendant's petition without an evidentiary hearing. This appeal followed.

The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693); State v. Allah, 170 N.J. 269, 283 (2002). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

Counsel's efforts are measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53. Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Fritz, supra, 105 N.J. at 52. In our review, we must evaluate the conduct from the attorney's perspective at the time of trial, being careful to eliminate the distorting effects of hindsight. State v. Buonadonna, 122 N.J. 22, 42 (1991). Additionally, counsel may not be considered ineffective merely because the trial strategy failed. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).

In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); Allah, supra, 170 N.J. at 283. Defendant must prove to "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial[,]" undermining confidence in defendant's conviction. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Cummings, supra, 321 N.J. Super. at 170. PCR is not an opportunity to relitigate a case already decided on the merits. State v. Cerbo, 78 N.J. 595, 605 (1979); R. 3:22-5.

While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2011); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

Guided by these standards, we review defendant's arguments seeking to reverse Judge Vena's denial of PCR. Defendant confines his attacks upon counsel's competence to two issues. He states counsel was ineffective as she did not: (1) discredit police witnesses by questioning their failure to obtain fingerprint evidence on bullet casings found at the scene of the shooting, and (2) investigate and present potential character witnesses who would have testified on his behalf. Defendant also believes the court should have held an evidentiary hearing on these claims. We examine each issue.

The State's forensic expert, Newark police officer Louis Alarcon, testified that he examined over twenty shell casings and spent bullets. These included eight .32 caliber shell casings, eight .45 caliber shell casings, and five .38 caliber shell casings that were recovered by detectives from the three-block crime scene. Ballistics tests confirmed the .32 caliber shells matched a .32 caliber handgun found abandoned at the scene.

Defendant maintains his attorney should have cross-examined police witnesses on the lack of fingerprint evidence retrieved from the casings. This argument was rejected by Judge Vena, who applied the two-pronged Strickland test. First, defendant offered no evidence showing another's fingerprints appeared on the casings. Second, defendant did not articulate how the lack of fingerprint analysis undermined the police work or testimony, which would correspondingly change the jury's verdict.

During trial, in addition to testimony from the arresting officers and the ballistics expert, the State presented the victim, Anthony Peaks, who had known defendant for about three years. Peaks testified defendant shot him in the chest several times after an argument. The State also presented a member of a private fugitive recovery company, Frank Roykins, who related the events he witnessed. Roykins, along with his partner, claimed they saw defendant shoot Peaks. As defendant attempted to flee, he ran toward Roykins and his partner. Roykins raised his gun and ordered defendant to stop. Defendant shot at Roykins, who returned fire, hitting defendant in the leg and causing him to lose his weapon. Defendant continued running. Roykins and his partner gave chase, but lost sight of defendant when shots from an unknown shooter caused them to take cover. Roykins explained he used a .45 caliber semi-automatic handgun, accounting for the .45 caliber casings found at the crime scene.

The court correctly concluded a fingerprint analysis would not have undermined the jury s guilty verdict. Defendant's argument, suggesting the line of questioning could have attacked the police officer's credibility, ignores the overwhelming evidence of guilt, including the testimonial evidence of Peaks and Roykins who repeatedly identified defendant as the shooter. The ample evidence of defendant's guilt found in the record substantially supports Judge Vena's finding that defendant failed to sustain his burden of proof under Strickland.

Defendant also maintains counsel failed to present character witnesses at trial to describe his mild mannered, non-violent, hardworking personality, squandering "a key opportunity to establish in the jurors' minds that [he] was not a person likely to engage in criminal activity[,]" and was "not a typical 'bad' youth from the inner city." Defendant concludes had the jury been presented with this evidence, they would have acquitted him.

This argument was not presented before Judge Vena and we decline to address it on appeal. State v. Arthur, 184 N.J. 307, 327 (2005). In his PCR petition, defendant argued counsel failed to investigate eyewitnesses, who over time forgot the details of the encounter. Reviewing this contention, Judge Vena noted the persons identified by defendant -- James Pickens and Lalee Singh -- although at the scene, did not see the shooting, making their testimony inconsequential. A fair evaluation of counsel's decision not to present these witnesses requires it to be viewed as reasonable and legitimate. Moreover, the decision to present character witnesses is tactical, and defendant's contentions do not establish such a decision fell outside the realm of sound trial strategy. State v. Castagna, 187 N.J. 293, 314 (2006).

Lastly, defendant asserts he should have been granted a full evidentiary hearing to present evidence of his counsel s ineffective assistance. We reject this assertion.

In order to be granted an evidentiary hearing, the defendant must present a prima facie case in support of his claim. State v. Marshall, 148 N.J. 89, 158 (1997); Preciose, supra, 129 N.J. at 462. The defendant must demonstrate a reasonable likelihood his or her claim will ultimately succeed on its merits. Preciose, supra, 129 N.J. at 463. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted). An evidentiary hearing "is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief." Ibid.

Following our review, we agree with Judge Vena that an evidentiary hearing was not necessary because defendant s claims of ineffective assistance of counsel fail on the merits. We conclude defendant's claims of ineffective assistance of trial counsel fail to meet either the performance or prejudice prong of the Strickland/Fritz test. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. We also discern no error in the denial of his request for an evidentiary hearing.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).