STATE OF NEW JERSEY v. MICHAEL N. BRIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3480-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL N. BRIGHT, a/k/a

MICHAEL MCNAIR,

Defendant-Appellant.

_____________________________

October 18, 2016

Submitted September 19, 2016 Decided

Before Judges Nugent and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-01-0214.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Bright appeals from the denial of his petition for post-conviction relief (PCR) following a remand from this court.1 After reviewing the record in light of the applicable legal principles, we affirm.

In 2002, defendant was found guilty of robbery, aggravated assault and other weapons offenses. Although we affirmed the convictions in the direct appeal, we remanded to the trial court for resentencing. State v. Bright, A-0437-03, slip op. at 10 (App. Div. July 25, 2006), certif. denied, 192 N.J. 479 (2007).

Defendant filed his first PCR petition in 2007, claiming trial counsel was "ineffective for her failure to address [c]onstitutional [v]iolations committed at [] trial" and that appellate counsel was "ineffective for her failure to challenge trial counsel's ineffectiveness." The petition was denied. On appeal, however, defendant represented that he had not met or spoken to his assigned counsel until after the PCR petition had been denied; therefore, we reversed the denial and remanded for a new hearing.

In a thorough written decision of May 13, 2014, the PCR judge discussed each of defendant's ten arguments and found them to be without support in the evidence. She also concluded that defendant was unable to meet his burden for relief on his ineffective assistance of counsel claims under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987).

In this appeal, defendant argues

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS.

A. Trial Counsel Failed To Have Stanislaus Black Testify.

B. Trial And Appellate Counsel Failed To Challenge The Lesser-Included Second-Degree Robbery Charge To The Jury.

We are not persuaded by these arguments. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland, supra, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674, and adopted by our Supreme Court in Fritz, supra, l05 N.J. at 42. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

We are satisfied from our review of the record that defendant failed to meet his burden of proof as to a showing of ineffectiveness of trial counsel within the Strickland-Fritz test.

In addressing defendant's contention that trial counsel was ineffective in his failure to call Stanislaus Black as a witness, we are guided by the deference we must accord to trial strategy decisions. State v. Arthur, 184 N.J. 307 (2005). Both the victim, who was friendly with defendant, and Black gave eyewitness statements to the police. Their descriptions of the shooter differed.

In her analysis, the PCR judge noted that "[c]alling Black to the stand presented obvious strategic issues for the defense." "The point of using his statement was to advise the jury there was an alternate description of the shooter which did not match defendant. This was accomplished by essentially having it admitted through the cross-examination of a detective." We find the PCR judge's conclusions to be supported by the credible evidence in the record. As she stated: "There was an obvious danger in calling Black, and an obvious advantage to having his description come in through another witness, not subject to cross-examination."

Turning to defendant's second argument, we also find it to be without merit. Based upon the facts presented to the jury, and the conflicting descriptions of the shooter, there was a rational basis to support the lesser-included second-degree robbery jury charge. See State v. White, 98 N.J. 122, 131 (1984) (finding it is possible for an accomplice to be guilty of second-degree robbery even when his principals are convicted of first-degree robbery charges).

Affirmed.

1 Defendant also appealed from the sentence imposed on April 23, 2014 and the two appeals were consolidated. Defendant has not presented any arguments to us regarding an error in his sentence and, therefore, we affirm.