STATE OF NEW JERSEY v. LAMAR A. JONES

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3673-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAMAR A. JONES,

     Defendant-Appellant.
_______________________

                   Submitted October 15, 2020 – Decided November 17, 2020

                   Before Judges Ostrer and Accurso.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 10-11-
                   1702.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew R. Burroughs, Designated Counsel,
                   on the brief).

                   Yolanda Ciccone, Middlesex County Prosecutor,
                   attorney for respondent (Patrick F. Galdieri, II,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Lamar A. Jones appeals from the trial court's order denying, without an

evidentiary hearing, his petition for post-conviction relief (PCR).      Jones

collaterally challenges his conviction of second-degree conspiracy to commit

robbery, N.J.S.A. 2C:5–2, N.J.S.A. 2C:15–1(a), second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39–5(b), and second-degree possession of

a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a). We affirmed those

convictions on direct appeal, but we reversed defendant's conviction of fourth-

degree criminal trespass, N.J.S.A. 2C:18–3, which was charged as a lesser-

included offense of attempted armed robbery. See State v. Jones, No. A-4115-

13 (App. Div. Aug. 1, 2017).

      We affirm.

      Jones presents the following points for our consideration:

                                   POINT I

            AS MR. JONES HAS ESTABLISHD A PRIMA FACIE
            CASE OF INEFFECTIVE ASSISTANCE OF
            COUNSEL, HE WAS ENTITLED TO POST-
            CONVICTION RELIEF, OR, AT A MINIMUM, TO
            AN EVIDENTIARY HEARING.

            (1) Trial counsel's failure to pursue a speedy trial
            prejudiced his client.

            (2) Trial counsel's opening statement prejudiced Mr.
            Jones' right to effective assistance of counsel.


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             (3) Trial counsel failed to effectively cross-examine the
             State's primary witness against his client.

                                     POINT II

             AS THERE WAS A GENUINE DISPUTE OF
             MATERIAL FACT, AN EVIDENTIARY HEARING
             WAS REQUIRED.

      To prevail on a claim of ineffective assistance of counsel, a defendant (1)

must prove that his counsel's performance fell below the standard established in

the Sixth Amendment of the United States Constitution, and he (2) "must show

that there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different."              Strickland v.

Washington,  466 U.S. 668, 687, 694 (1984); see also State v. Fritz,  105 N.J. 42

(1987). Because the PCR court did not hold an evidentiary hearing, we review

de novo both the PCR court's factual inferences and its legal conclusions. State

v. Harris,  181 N.J. 391, 420–21 (2004). However, we shall not disturb the PCR

court's determination if we are persuaded by the soundness of its reasoning. See

State v. S.S.,  229 N.J. 360, 380 (2017).

      Applying that standard, we affirm, substantially for the reasons set forth

in Judge Alberto Rivas's cogent oral opinion. Where a defendant asserts that his

attorney was ineffective by failing to file a motion, he must establish that the

motion would have had merit. See State v. O'Neal,  190 N.J. 601, 618–19 (2007)

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(discussing failure to file suppression motion). "It is not ineffective assistance

of counsel for defense counsel not to file a meritless motion . . . ." Id. at 619.

As Judge Rivas found after applying the four-factor Barker test, Barker v.

Wingo,  407 U.S. 514, 530–33 (1972), Jones would not have prevailed on a

motion to dismiss based on an alleged denial of his right to a speedy trial. We

discern no error in that finding.

      As did Judge Rivas, we also find no merit in Jones's contention that his

trial attorney was ineffective in his opening statement and in his cross-

examination of Keree Wade, the State's primary witness and Jones's fellow co-

conspirator, who was convicted at an earlier trial and then cooperated with the

State. Essentially, Jones argues that the opening statement was not extensive

enough, and that the cross-examination was not incisive enough. But Judge

Rivas concluded that trial counsel's performance, despite Jones's critique, did

not fall below an objective standard of reasonableness as Strickland requires.

Mindful that "[j]udicial scrutiny of counsel's performance must be highly

deferential," and that "counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment," we agree that trial counsel's performance fell "within




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the wide range of reasonable professional assistance." See Strickland,  466 U.S.

at 689–90.

      We add a comment on one aspect of trial counsel's alleged ineffectiveness.

Jones contends that trial counsel was ineffective because he tried to undermine

Wade's credibility by eliciting his gang-member status. Yet, on direct appeal,

defendant effectively endorsed that strategy by contending — albeit

unsuccessfully — that the court infringed upon his constitutional right to

confrontation by prohibiting that line of questioning. If nothing else, Jones's

inconsistent positions at least demonstrate that trial counsel's strategy was a

reasonably debatable one that did not fall below the constitutional floor. See

State v. Marshall,  148 N.J. 89, 255–56 (1997) (rejecting claims of trial counsel

ineffectiveness that "all involve clearly debatable issues of strategy").

      To the extent not addressed, Jones's remaining points lack sufficient merit

to warrant discussion in a written opinion. R. 2:11–3(e)(2).

      Affirmed.




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