STATE OF NEW JERSEY v. WAYNE P. RUSSELL

NOT FOR PUBLICATION WITHOUT THE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.

WAYNE P. RUSSELL,

Defendant-Appellant.

_____________________________________________________

April 20, 2015

Submitted March 3, 2015 Decided

Before Judges Fisher, Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1117.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his post-conviction relief (PCR) petition. Finding no merit in his arguments, we affirm.

A jury found defendant guilty of attempted murder, three counts of second-degree aggravated assault, third-degree aggravated assault, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. On December 1, 2006, defendant was sentenced to an aggregate twenty-four-year prison term with an eighty-five percent period of parole ineligibility. Defendant filed a direct appeal; we affirmed, State v. Russell, A-3195-07 (App. Div. Oct. 22, 2009), and the Supreme Court denied certification, 201 N.J. 273 (2010). Defendant filed a PCR petition nearly five years after entry of the judgment of conviction; appointed counsel filed a brief and presented oral argument on defendant's behalf in the trial court.

In his PCR petition, defendant alleged four instances of ineffective assistance of counsel: (1) "trial counsel did not inform the jury in his opening statement about the grand jury process that [defendant] was presumed innocent, and he barely spoke about the burden of proof"; (2) during summation, "trial counsel did not object to certain statements made by the prosecutor" and "failed to object to highly-prejudicial and inflammatory statements made by the prosecutor"; (3) trial counsel "failed to request a charge of causation"; and (4) "trial counsel failed to request [a jury instruction on] reckless endangerment." Defendant also claimed he was denied of a fair trial.

Judge Frederic R. McDaniel found defendant's claims of ineffective assistance of counsel did not meet the Strickland1 standard. He concluded that "since defense attorneys may properly decide to forego opening statements entirely under Rule 1:7-1, and State v. Williams, 232 N.J. Super. 414 [(App. Div.), certif. denied, 117 N.J. 633 (1989)]," the opening did not fail to meet professional standards. He also found the prosecutor's statements during summation were not improper or, even if they did exceed the bounds of proper advocacy, the trial judge had given the jury an adequate curative instruction. Furthermore, the judge concluded none of these alleged errors prejudiced the outcome. And the judge determined that the ineffectiveness arguments regarding the jury instructions, or lack thereof, should have been raised in the direct appeal and, for that reason, they were procedurally barred.2 For these and other reasons contained in a comprehensive oral decision, Judge McDaniel denied defendant's PCR petition by order entered on January 29, 2013.

In this appeal, defendant argues

I. THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by Judge McDaniel in his thorough and well-reasoned oral decision.

Affirmed.

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

2In the direct appeal, defendant argued only that the trial judge erred in permitting the State to elicit testimony pursuant to N.J.R.E. 404(b) and that his sentence was excessive. See Russell, supra, slip op. at 2.