STATE OF NEW JERSEY v. KENNETH G. LEFURGE JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3439-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH G. LEFURGE, JR.,

Defendant-Appellant.

_______________________________

April 18, 2012

Submitted January 19, 2012 - Decided

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-04-0558.

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

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel;Robert Cassidy,Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant Kenneth G. LeFurge, Jr. appeals from the denial of his petition for post-conviction relief (PCR), without the benefit of an evidentiary hearing, arguing:

THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR POST CONVICTION RELIEF AND AN EVIDENTIARY HEARING TO DEVELOP THE RECORD FOR HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

We affirm.

Defendant was convicted of armed robbery, N.J.S.A. 2C:15-1.1 Defendant, his codefendant, and a juvenile set up a meeting to buy marijuana, telling the seller, Timothy Schaad, to bring change for a $100 bill. At the meeting, Schaad had not obtained the marijuana and defendant agreed to wait for him to make a call. Defendant then pointed a gun at Schaad's face and demanded he turn over his money. Schaad surrendered $50.

Schaad had never met defendant, but knew the codefendant. When shown a photo array, Schaad was unable to identify defendant, whom he had never met prior to that evening. He later identified defendant when shown photographs of only defendant and his codefendant. At trial Schaad was also unable to identify defendant, but he identified the gun as the one that was pointed at his face.

At trial, the juvenile and the codefendant testified as State's witnesses pursuant to the terms of their respective plea agreements. They identified defendant and testified as to his role in the robbery.

After a two-day trial, the jury convicted defendant. He was sentenced to a fifteen-year prison term, subject to the 85% period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release.

On appeal, we affirmed defendant's conviction and sentence in an unpublished opinion and the Supreme Court denied certification. State v. LeFurge, A-4743-05 (App. Div. August 7, 2007) (slip op. at 20), certif. denied, 195 N.J. 521 (2008).

Defendant filed his petition for PCR. Counsel was appointed and filed an amended brief, arguing defendant's trial counsel was ineffective because he failed to: 1) move to suppress the false testimony of the juvenile and his codefendant; 2) request a Wade2 hearing; and 3) call an alibi witness.3 In his thorough review of these issues, Judge Den Uyl determined the juvenile and codefendant admitted during cross-examination that they omitted certain facts to protect codefendant's wife, Crystal, who also was defendant's and the juvenile's cousin. Defendant's complicity in the robbery was established through the testimony of his codefendant and the juvenile. Next, because Schaad could not indentify defendant at trial, his out-of-court statements, choosing defendant's picture when shown alongside codefendant's photograph, were not presented to the jury, obviating the need for a Wade hearing. Finally, the judge noted defendant did not disclose the purported alibi witness, the testimony that should have been offered, or why the witness was not called, making his claim meritless. Accordingly, the petition for PCR was denied and an evidentiary hearing was unnecessary. This appeal ensued.

The analytic framework controlling our review of a trial court's denial of a PCR petition is well recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong 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). First, he must show "'that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696-97. 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.

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). 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). "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, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2012); accord State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). If "a defendant has established a prima facie showing of ineffective assistance of counsel, [then] he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different[.]'" Rountree, supra, 388 N.J. Super. at 206 (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)).

Our review discerns no error in the denial of defendant's PCR petition. For the reasons stated by Judge Den Uyl, we reject the notion defendant's conviction was supported by perjured testimony. Admittedly, the custodial statement of the juvenile and codefendant did not implicate Crystal. The statements were disclosed to defendant, who extensively used them at trial to cross-examine the witnesses on their purposeful omissions.

Defendant's reliance on State v. Cahill, 125 N.J. Super. 492 (Law Div. 1973), is misplaced. In Cahill, the State's witness changed his trial testimony from that given during his plea hearing. Id. at 495. Not only did the trial testimony implicate the defendant, as the witness stated defendant had a gun, but also the witness falsely asserted he never made a statement denying defendant had a gun. Ibid.

Here, the codefendant and the juvenile acknowledged they made the prior statements and admitted the failure to disclose details regarding Crystal's role in the crime. The changed testimony did not involve defendant or his role. Defendant's claim of error is without merit.

Similarly, the assertion of the necessity of a Wade hearing is unfounded. Although the procedure used in an effort to secure Schaad's out-of-court identification of defendant may have been impermissibly suggestive, Schaad's identification was not part of the State's case. Schaad identified codefendant, who in turn implicated defendant. A Wade hearing would serve no purpose, making its absence in this matter inconsequential.

On appeal, defendant identified his alibi witness as Crystal Gladys, who he claims would have explained defendant was with her and not with codefendant and the juvenile. We are not provided with the PCR petition, however, the trial judge's remarks make clear this information was not disclosed in his pleadings. "A petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. Statements enhancing the limited information presented before the trial court, offered for the first time on appeal, will not be considered. State v. Robinson, 200 N.J. 1, 20 (2009).

In summation, defendant has failed to demonstrate his trial counsel's conduct was deficient or that he was prejudiced as a result of counsel's actions or omissions. We reject defendant's arguments to the contrary as without merit. R. 2:11-3(e)(2). Consequently, no evidentiary hearing was necessary. Preciose, supra, 129 N.J. at 462. We have no basis to interfere with Judge Den Uyl's order denying defendant's petition for PCR.

A

1 The indictment included weapons charges, which were dismissed by the State when it was determined the object used, a spring-powered pellet gun, did not qualify as a firearm pursuant to N.J.S.A. 2C:39-4a.

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

3 A fourth argument that defendant's sentence was excessive was not presented on appeal and will not be discussed.