STATE OF NEW JERSEY v. DAVID MINOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5659-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID MINOR,a/k/a

DAVID SMITH, AARON WHEELER,

ARRON WHELLER,TYRONE WHEELER,

TYRONE WILLER, ROBERT HENDERSON,

DAVID MILLER AND JAMES TATE,

Defendant-Appellant.

_____________________________

November 20, 2012

Submitted October 30, 2012 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-05-1845.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor (Maria I. Guerrero, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant David Minor appeals from a December 16, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I

In 2004, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and associated weapons offenses, and sentenced to twenty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On defendant's direct appeal, he raised the following issues:

POINT I - THE TRIAL COURT'S FAILURE TO CONDUCT A GILMORE HEARING DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 5, 9 & 10.

POINT II - THE PROSECUTOR MISSTATED THE LAW AND HER BURDEN OF PROOF AND HER IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9 & 10. (Not Raised Below.)

POINT III - THE POLICE FAILED TO FOLLOW ESTABLISHED ATTORNEY GENERAL PROTOCOL IN CONDUCTING THE PHOTO ARRAY. (Not Raised Below.)

A. FAILURE TO CONDUCT A WADE HEARING WAS NOT HARMLESS.

B. BRANCH AND BANKSTON WERE NOT FOLLOWED AND THE RESULTANT HEARSAY DEPRIVED THE DEFENDANT OF A RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. (Not Raised Below.)

C. CONCLUSION: THE TAINTED PHOTO ARRAY VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT IV - THE DEFENDANT'S SENTENCE OF TWENTY YEARS WITH N.E.R.A. PAROLE INELIGIBILITY, VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. U.S. CONST. AMENDS. VI AND XIV. (Not Raised Below.)

We affirmed the conviction, but remanded for reconsideration of the sentence, pursuant to State v. Thomas, 188 N.J. 137 (2006). State v. Minor, Docket No. A-6501-05 (App. Div. Sept. 29, 2008), certif. denied, 197 N.J. 16 (2008).

Defendant filed a pro se PCR petition in December 2008, contending that his trial was unfair because a disqualified juror was permitted to serve on the jury, and arguing that his appellate counsel was ineffective for failing to file a motion for reconsideration of our decision rejecting his argument pursuant to State v. Gilmore, 103 N.J. 508, 526-27 (1986). After counsel was assigned, defendant's attorney filed a supplemental brief, arguing that defendant's trial counsel did not meet with him often enough and did not discuss the discovery with him or inform him of his right to be present at sidebar "when issues were discussed with the Court."

Defendant also alleged that during the trial his attorney told him that "she thought she . . . heard the victim ask the prosecutor" where the defendant was, implying that the victim could not identify defendant without first asking the prosecutor to point him out. However, at the oral argument of the PCR petition, defendant's PCR counsel informed the court that he had spoken to defendant's trial counsel, who had no recollection of hearing the victim ask the prosecutor to identify the victim. Nor did trial counsel's case notes indicate that she had heard the victim ask such a question.

In an oral opinion placed on the record on December 16, 2009, the PCR judge found that defendant failed to produce evidence to support his allegation concerning what his attorney allegedly heard the victim say. The judge also noted that the victim was not able to identify defendant at the trial with complete certainty; rather, the victim testified that he was certain when he identified defendant from a photo array a few days after the crime occurred.

The judge further found that the unqualified juror, who did not reside in Essex County where the trial was being held, N.J.S.A. 2B:20-1d, was dismissed before the jury began deliberating. Consequently, his initial inclusion on the jury, while erroneous, did not affect the outcome of the trial. The judge also rejected defendant's argument concerning his trial attorney's alleged failure to consult with him, because he did not demonstrate how this alleged failure affected the outcome of the trial. She likewise found defendant failed to establish that his appellate counsel was ineffective.

II

On this appeal, defendant raises the following points for our consideration:

POINT ONE

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO OBJECT TO THE VICTIM'S TESTIMONY AFTER ASKING THE PROSECUTOR WHICH PERSON WAS THE DEFENDANT.

POINT TWO

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE DEFENDANT'S PCR WAS FILED WITHIN THE FIVE YEAR TIME PERIOD.

POINT THREE

THE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED BY R. 3:22-4.

POINT FOUR

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.

POINT FIVE

PETITIONER INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND IN ANY PRO SE SUPPLEMENTAL BRIEF.

In a supplemental pro se brief, defendant raises this additional point:

DEFENDANT WAS DENIED HIS 6TH AND 14th AMENDMENT RIGHTS DUE TO THE TRIAL COURT'S FAILURE TO PERFORM ITS GATEKEEPING ROLE.

We conclude that defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant did not establish that his trial, appellate or PCR counsel rendered ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We add the following comments.

On this appeal, defendant once again asserts that his trial attorney told him that she "thought" she heard the victim ask the prosecutor where the defendant was. However, defendant produced no legally competent evidence to support that contention, and his PCR counsel, who had spoken to the trial attorney, admitted that there was no evidence to support the claim. Defendant attempts to circumvent that flaw in his case by contending that the PCR court should have held an evidentiary hearing on the issue. However, to be entitled to an evidentiary hearing, a defendant must present a prima facie case of ineffective assistance. State v. Preciose, 129 N.J. 451, 462-63 (1992). A prima facie case requires legally competent evidence; "bald assertions" are insufficient to entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999).

Defendant's assertion, that his PCR counsel was ineffective for failing to further investigate his claim, is likewise insubstantial. There is no evidence on this record that further investigation by PCR counsel would have produced any information helpful to defendant's case. See ibid.

Finally, we address defendant's argument concerning the juror who was permitted to sit on the jury until it was discovered that he did not reside in Essex County. The argument is barred by Rule 3:22-4, because it could have been raised on direct appeal. However, it is also without merit. This juror was dismissed before the jury began deliberating. His earlier inclusion on the jury provides no basis to reverse defendant's conviction. See State v. Farmer, 366 N.J. Super. 307, 319-20 (App. Div.), certif. denied, 180 N.J. 456 (2004).

Affirmed.