STATE OF NEW JERSEY v. GARY D. STEVENSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY D. STEVENSON,

Defendant-Appellant.

____________________________

May 18, 2015

Submitted April 21, 2015 Decided

Before Judges Yannotti and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-10-1154.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a May 8, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

We discern the following facts from the record. On January 12, 2008, Charmaine Roth returned home from a vacation to find the lock on her front door and a window near the door broken. Inside her home, things were in disarray and several items were missing. The police were summoned and when they arrived they retrieved evidence of a blood stain from a curtain and a blonde hair from the bathroom sink. When the blood stain was submitted for analysis, the DNA extracted from the stain matched defendant's DNA as reported in the Combined DNA Index System (CODIS) database. As a result of the DNA match, the police obtained a search warrant for a buccal swab from defendant,executed the search, and submitted the resulting DNA sample for comparison. The samples matched. Defendant was indicted for third-degree burglary, N.J.S.A. 2C:18-2a(1).

Defendant moved to suppress the DNA evidence, the motion was denied, and defendant was tried before a jury. At trial, the parties stipulated that the CODIS administrator discovered a match between the samples contained in the curtains and defendant's DNA profile. The parties also agreed that the police were notified of the match as an investigative lead in the burglary of Roth's home. A forensic scientist testified at trial as an expert in biological stain analysis and serology and concluded that the stains extracted from the curtain were positive for blood.

A second forensic scientist, qualified as an expert in DNA analysis and comparison, testified that defendant was the source of the blood stain on Roth's curtain, due to the rarity of his DNA profile. Defendant's parents also testified, indicating that defendant periodically lived with them, but sometimes stayed at a homeless shelter in Trenton. The jury found defendant guilty of third-degree burglary.

Defendant was sentenced to an extended term of ten years, with a five-year period of parole ineligibility, restitution, fines and penalties. Defendant's conviction was affirmed on appeal and the matter remanded for a determination of the restitution amount. State v. Stevenson, No. A-3961-09 (App. Div. September 27, 2011) (slip op. at 16), certif. denied, 210 N.J. 218 (2012).

Defendant filed a petition for PCR and oral argument was heard on April 12, 2013. The PCR judge issued a written opinion denying defendant's request for an evidentiary hearing and denying the petition.

On appeal, defendant raises the following arguments

POINT I

THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

POINT II

THE COURT'S RULING DENYING POST CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes New Jersey's "analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014) (citing State v. Afanador, 151 N.J. 41, 49 (1997)). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel includes "the right to effective counsel." State v. Cottle, 194 N.J. 449, 466 (2008) (citing State v. Norman, 151 N.J. 5, 23 (1997)).

Claims of ineffective assistance of counsel must satisfy the two-prong Strickland/Fritz test.1 The test requires a showing of deficient performance by counsel and prejudice to the accused resulting from such deficient performance. 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).

An evidentiary hearing for PCR is only required when the defendant has made a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.

"[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that [a defendant] wishe[s] to present." Jones, supra, 219 N.J.at 312.

We first address defendant's contention that he was prejudiced by his counsel's deficient performance via his failure to defer to defendant's direction in jury selection. In particular, defendant cites trial counsel's failure to challenge certain jurors and selection of an all-white jury panel. However, defendant fails to demonstrate how he was prejudiced or that the jury was not fair or impartial,2 and therefore fails to satisfy the Strickland/Fritz test.

We also reject defendant's argument that his counsel's failure to investigate and determine the general acceptance and reliability of the CODIS System and counsel's stipulation to the admissibility of such evidence constituted ineffectiveassistance. Defendant does not assert how his counsel could have challenged the reliability and admissibility of the CODIS evidence.

Both courts and the Legislature have determined that DNA evidence is reliable. "DNA test results are much like fingerprints and photographs in that the results reveal identifying information that can be stored for further use[,]" and "results lawfully obtained . . . may be used to solve crimes committed prior to the taking of the DNA test." A.A. ex rel B.A. v. Attorney General of New Jersey, 189 N.J.128, 140 (2005). The Legislature has determined "that DNA testing enhances the State's ability to positively identify an offender, to ascertain whether an individual may be implicated in another offense, and to establish positive identification in the event the offender becomes a fugitive." N.J.S.A.53:1-20.18.

Moreover, the Legislature has put into place standards to ensure reliability. Only qualified experts with sample collection training may collect DNA samples, N.J.S.A.53:1-20.22, and the Legislature had provided for

rules governing the procedures to be used in the submission, identification, analysis and storage of DNA samples and typing results of DNA samples submitted under this act. The DNA sample shall be securely stored in the State databank. The typing results shall be securely stored in the State database. These procedures shall also include quality assurance guidelines to insure that DNA identification records meet audit standards for laboratories which submit DNA records to the State database. The DNA identification system established pursuant to this act shall be compatible with that utilized by the FBI.

[N.J.S.A. 53:1-20.23.]

Additionally, when the State seeks to admit the results of a scientific testing technique, it bears the burden of showing that the technique is generally accepted in the scientific community. See, e.g., Romano v. Kimmelman, 96 N.J. 66, 80 (1984); see also N.J.R.E. 702 (governing testimony by experts).

Defendant's other arguments regarding his counsel's remarks during summation and failure to object to the prosecutor's comments during summation similarly fail to demonstrate either deficient performance by counsel or the prejudice required to satisfy the Strickland/Fritz standard. A reviewing court "may infer from the lack of an objection that counsel recognized that the alleged error was of no moment or was a tactical decision to let the error go uncorrected at the trial." State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000). Moreover, we conclude that even if the comments by both the prosecutor and defense counsel were in error, they were incapable of being prejudicial given the DNA evidence establishing defendant's guilt.

Defendant has not demonstrated any reasonable likelihood of success on the merits. Therefore, he is not entitled to an evidentiary hearing. Marshall, supra, 148 N.J. at 158.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

2 In Batson v Kentucky, 476 U.S 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 83 (1986), the United States Supreme Court held that a prosecutor could not peremptorily challenge jurors solely on account of their race. In Georgia v. McCollum, 505 U.S. 42, 59, 112 S. Ct. 2348, 2359, 120 L. Ed. 2d 33, 51 (1992), the Court held that it was also unconstitutional for a defendant in a criminal case to utilize peremptory challenges to remove jurors on the basis of race. In New Jersey, we have said that a prosecutor may not exercise a peremptory challenge to remove members of any cognizable group based on a presumed group bias, State v. Gilmore, 103 N.J. 508, 538 (1986), and the same prohibition also applies to peremptory challenges by defendants, State v. Johnson, 325 N.J. Super. 78, 84 (App. Div. 1999), aff'd, 166 N.J. 523 (2001).