STATE OF NEW JERSEY v. STEVE MARKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0840-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVE MARKS,

Defendant-Appellant.

__________________________

February 24, 2012

Submitted February 15, 2012 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-02-0422.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Barbara N. Suppa, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Steve Marks appeals from the March 31, 2010 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial and appellate counsel. We affirm.

The facts of this matter are set forth in State v. Marks, No. A-1457-06 (App. Div. July 18, 2008), certif. denied, 196 N.J. 599 (2008), and need not be repeated here in detail. The following facts are pertinent to this appeal.

A jury convicted defendant of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count one); second-degree eluding the police, N.J.S.A. 2C:29-2b (count two); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b, -1b(5)(a) and -1b(2) (counts three, five and eight respectively); and second-degree aggravated assault while eluding, N.J.S.A. 2C:12-1b(6) (count nine).1 The trial judge imposed a four-year term of imprisonment on count one, and a concurrent five-year term of imprisonment on count two. The judge merged counts three, five and eight into count nine and imposed a consecutive five-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant filed a PCR petition, contending that trial counsel rendered ineffective assistance because in his opening statement and summation, he misstated to the jury that it "should" rather than "must" find defendant not guilty if the State did not prove the charges beyond a reasonable doubt. Defendant posited that counsel's statements diluted the State's burden of proof to allow for a conviction without proof of each element of the charges beyond a reasonable doubt. Defendant also argued that appellate counsel rendered ineffective assistance by failing to raise trial counsel's ineffectiveness on defendant's direct appeal, and that his PCR petition was not procedurally barred.

In opposition, the State argued that Rule 3:22-4 bars defendant's ineffective-assistance-of-counsel claim because he should have raised it in his direct appeal, and no exception applied. The State also argued that defendant failed to establish a prima facie case of ineffective assistance of counsel, or alternatively, the trial judge corrected any possible prejudice caused by counsel's statements when she explained the State's burden of proof in the final jury instructions.

In a written opinion rendered on March 31, 2010, Judge Ronald Lee Reisner applied exceptions (1) and (3) of Rule 3:22-4(a) to conclude that defendant's petition was not procedurally barred. The judge relied on the general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal, and on the constitutional dimension of such a claim.

Addressing the merits, Judge Reisner concluded that defendant failed to satisfy both prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) as to trial counsel. With respect to the second prong, the judge found that, even if trial counsel's statements were deficient, there was no prejudice because the trial judge had properly instructed the jury on the presumption of innocence, on the State's burden to prove every element of every charge beyond a reasonable doubt, and on the jury's obligation to acquit defendant where the State failed to meet its burden of proof. The trial judge had also properly instructed the jury that it must accept her explanation as to the law and disregard what the attorneys said about the law if it differed from her instructions, as well as that the jury must not treat the attorneys' opening statements and summations as evidence. Judge Reisner also concluded that defendant failed to satisfy both prongs of Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, as to appellate counsel. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

POINT II THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE APPELLATE LEVEL.

POINT III THE TRIAL COURT PROPERLY ADJUDICATED THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON ITS SUBSTANTIVE MERITS SINCE THE ISSUES RAISED THEREIN WERE NOT PROCEDURALLY BARRED PURSUANT TO RULE 3:22-4.

We have considered these contentions in light of the record and applicable legal principles, and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Reisner in his well-reasoned written opinion rendered on March 31, 2010. However, we make the following brief comments.

We are satisfied that the jury instructions corrected any possible prejudice that trial counsel's misstatements may have caused. State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005). Jurors are presumed to have followed the court's instructions in the absence of evidence demonstrating otherwise. State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007). There is no such evidence here.

Affirmed.

1 The jury acquitted defendant of second-degree aggravated assault on another police officer, N.J.S.A. 2C:12-1b (count four), and third-degree aggravated assault on the second police officer, N.J.S.A. 2C:12-1b(5)(a) and -1b(2) (counts six and seven).