STATE OF NEW JERSEY v. MARC JORDAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0729-04T40729-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC JORDAN,

Defendant-Appellant.

_______________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Conley and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-01-0144.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Thomas Campo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marc Jordan, who was convicted in June 2000 for making terroristic threats in violation of N.J.S.A. 2C:12-3a, appeals the Law Division's denial of his motion pursuant to R. 3:22-1 et seq. for post-conviction relief. We affirm.

The underlying conduct involved telephone threats of retaliation and physical harm, which were made to a secretary with a law firm that had ceased representing defendant in another criminal matter. After a three day trial, a Monmouth County jury found defendant guilty of the threats. Defendant was sentenced to an extended seven year prison term with a three year parole disqualifier. In a per curiam opinion issued on May 20, 2002, this court affirmed defendant's conviction on substantive grounds, but remanded the matter to afford defendant an opportunity for allocution on his sentence. The Supreme Court denied certification on July 12, 2002. Defendant thereafter filed an application for post-conviction relief (PCR), which was denied on August 27, 2004 at a hearing conducted by the same judge who had presided over his 2000 trial.

The thrust of defendant's application criticizes the trial judge's method of excusing a juror who had singularly observed defendant in handcuffs during a break in the proceedings. As a threshold matter, we find this argument, which was not raised on direct appeal, procedurally improper under R. 3:22-4. The excused-juror issue reasonably could have been included in defendant's direct appeal, and we find no fundamental injustice or constitutional reason to excuse that failure. Id. See also State v. McQuaid, 147 N.J. 464, 483 (1997).

In any event, we evaluate the trial judge's handling of the excused juror, because defendant also claims that he was deprived of the effective assistance of trial and appellate counsel on this issue and other matters. Having reviewed the trial transcripts and other relevant portions of the record, we agree with the PCR judge's finding that the claim of ineffective assistance is without merit.

During a recess in defendant's trial, the trial judge requested the jurors to wait downstairs in the courthouse before returning to the courtroom floor. One of the jurors, Juror No. 6, nonetheless came upstairs early, and inadvertently observed defendant in handcuffs as he came out of an elevator. When this came to the trial judge's attention, the judge interviewed Juror No. 6 and confirmed the juror's inadvertent observation. The court excused the juror, and instructed him to go back downstairs and not discuss the matter with the other jurors. When the remaining jurors returned to the courtroom, the judge simply indicated that Juror No. 6 had been excused while the jury was on break. There was no further reference to, or involvement of, the excused juror.

Defendant contends that his trial counsel should have insisted that the judge individually voir dire the remaining jurors about whether they had discussed with Juror No. 6 the reasons that led to that juror's discharge. We find such questioning, even if it had been requested, would have been unnecessary under the circumstances.

There is no indication in the record before us of a feasible opportunity in the courthouse for Juror No. 6, once he was excused, to have met with the other jurors and passed on his observation of the defendant in handcuffs. Even if such an encounter were feasible, there is also no reason to suspect that Juror No. 6 would have deliberately violated the judge's directive to not discuss the matter, or that the remaining jurors would have violated the court's general admonition not to discuss the case outside of deliberations. Moreover, all of the jurors already knew from the trial evidence that defendant had been incarcerated for other crimes, a fact which was germane to the victim's fear in receiving defendant's threatening calls from jail. Thus, the handcuffs would have been no surprise. The trial judge was entirely within his discretion in his handling of the juror's hallway observation. State v. R.D., 169 N.J. 551, 557-63 (2001).

We also summarily reject defendant's more general claim that his trial counsel did not adequately communicate with him in preparation for trial. The logs in the record show that defendant and his attorney were in court together at least fifteen times before the trial date. No showing of substantial prejudice under Strickland v. Washington, 466 U.S. 668; 86 S. Ct. 2052; 80 L. Ed. 2d 674 (1984) has been made. In fact, the trial judge complimented defense counsel on the record for his trial advocacy, and for making arguments that kept the jury in deliberations well beyond the judge's expectations.

We find no denial of the effective assistance of trial counsel or, for that matter, of appellate counsel for the defendant. There are no specific, competent facts before us establishing counsel's deficiency and resulting prejudice to the defendant. State v. Fritz, 105 N.J. 42 (1987).

 
Affirmed.

The record does not indicate whether defendant subsequently availed himself of that opportunity. In any event, there is no indication that his sentence has been altered.

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A-0729-04T4

December 28, 2005