STATE OF NEW JERSEY v. SHERWIN FIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4271-07T44271-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHERWIN FIELD,

Defendant-Appellant.

_______________________________

 

Submitted: October 28, 2009 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-10-0586.

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

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sherwin Field appeals from the December 10, 2007 order denying his petition for post-conviction relief (PCR), in which he argues ineffective assistance of trial and appellate counsel, as well as error by the trial court in its jury charge. We affirm.

Tried to a jury over eight days, defendant was convicted of the lesser-included offense of reckless manslaughter, two counts of aggravated assault, and several weapons offenses. The convictions arose out of a confrontation between young men from Somerville and Plainfield at a party in Somerville that escalated into a street confrontation during which the Plainfield group was ambushed by defendant and his Somerville friends who were armed with handguns. Defendant fired his .40 caliber semi-automatic pistol containing illegal hollow-nosed bullets eight times into the crowd at the Plainfield men, one of which struck Jamie Suitt, a Plainfield high school basketball star, in the leg, perforating his artery and causing him to bleed to death. Another of defendant's bullets struck Wayne DeBarros through the right side before landing in a tree.

Shell casings linked to defendant's gun were found at the scene. A canine dog tracked a human's scent from the area where bullets were believed to have first been fired to defendant's backyard, finally stopping at his front door. Search warrants were issued and police recovered clothing, hollow-nosed bullets and a .40 caliber Heckler and Koch semi-automatic handgun from defendant's home and vehicle. Subsequent testing revealed the bullet removed from Suitt's body and a bullet found with the eight shell casings from the scene were similar to each other and probably fired from a gun similar to the one seized from defendant's vehicle. Defendant was identified by a witness during a photographic array.

Defendant received an aggregate custodial sentence of twenty-seven years with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction and sentence on appeal, State v. Field, No. A-1481-02T4 (App. Div. April 12, 2004), and the Supreme Court denied defendant's petition for certification, State v. Field, 181 N.J. 286 (2004). On December 14, 2005, defendant filed a motion for a reduction or change of sentence, which was denied by the court and memorialized in an order of January 9, 2007.

This PCR petition ensued and was denied by Judge Paul Armstrong by order of December 10, 2007, following oral argument with defendant present, but without an evidentiary hearing. Defendant had sought relief from the judgment on a multitude of grounds asserted in a pro se submission and that of PCR counsel, claiming ineffective assistance of trial and appellate counsel and errors by the trial court necessitating reversal. Those issues which are renewed on appeal are error by the trial court in declining to give the jury a self-defense charge, which was requested by trial defense counsel, and ineffectiveness of appellate counsel for failing to raise that error as a point on appeal; ineffectiveness of trial and appellate counsel in failing to object to or raise as error the absence of a jury finding on the requirements of NERA as to reckless manslaughter; and an erroneous jury instruction by the trial court regarding the mental state aspect of accomplice liability.

Defendant's claims were rejected by the PCR court. Citing to the record, Judge Armstrong found that the trial court carefully reviewed the evidence presented by both the State and defendant and determined "there was no rational basis to support [a self-defense] charge" under State v. Moore, 158 N.J. 292, 308-310 (1999). The court noted that there was no evidence presented at trial to demonstrate that defendant fired the shots in self-defense or for the protection of others or that the victim or any of his companions were armed. Therefore, Judge Armstrong concluded it was not error for the trial court to refuse to provide the jury with the self-defense instruction and accordingly, appellate counsel's decision not to raise this issue on appeal could not be deemed ineffective assistance of counsel.

The court also disposed of defendant's NERA challenge, namely that since the jury did not specifically find beyond a reasonable doubt that defendant was guilty of a NERA offense when it found him guilty of the lesser-included offense of reckless manslaughter, a NERA term could not be imposed on that conviction. As Judge Armstrong explained, a separate jury finding on the NERA criteria was not required because at the time of defendant's trial, NERA clearly applied to a reckless manslaughter conviction. State v. Newman, 325 N.J. Super. 556, (App. Div. 1999), certif. denied, 163 N.J. 396 (2000); State v. Ferencsik, 326 N.J. Super. 228 (App. Div. 1999). Thus, even if defendant's trial attorney had argued at the time of sentencing that a NERA term could not be imposed on defendant's conviction for reckless manslaughter, that argument would have been unsuccessful.

The PCR judge also rejected defendant's challenges as to the jury instruction regarding accomplice liability, stating:

During deliberation the jury had a question regarding accomplice liability. The defendant requested a jury charge indicating that if defendant gave co-defendant Proctor the gun to protect himself, he did not share any criminal intent on Proctor's part.

Although the Court did not use the exact language requested by defendant, the Court's instruction to the jury [about] accomplice liability was indeed correct and proper.

The Court explained that in order for it to find defendant guilty as an accomplice on the murder, attempted murder and aggravated assault charges, it had to find beyond a reasonable doubt that, [(1)] other persons committed those acts; [(2)] that the defendant aided, agreed to aid or attempted to aid those persons in the commission of those crimes; [(3)] defendant's purpose was to promote or facilitate the commission of those crimes; and [(4)] that the defendant possessed the same criminal state of mind or a greater state of mind that was required to be proven against the person who actually committed those crimes.

Additionally, the jury was instructed that it had to find that there was a community of purpose among those who participated in the commission of the crime.

The jury was also charged that it had to find that it was defendant's conscious object that those crimes were committed. Moreover, it is of no moment that the verdict form did not have an interrogatory regarding whether defendant was being convicted as a principal or as an accomplice. A jury does not have to unanimously agree on whether a defendant has acted as a principal or accomplice. This is the teaching of State v. Frisb[y], 174 N.J. at 596. Again, citing United States v. Peterson, 768 F.2d 64.

However, the jury was instructed numerous times that the verdict had to be unanimous.

Because the trial court's instruction to the jury regarding accomplice liability was proper, appellate counsel did not err in refusing to present this issue.

[Citations to the trial record omitted.]

Defendant renews these arguments on appeal. We affirm substantially for the reasons articulated by Judge Armstrong on the record on November 15, 2007. We add the following brief comments. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) 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, 104 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 make a prima facie showing of ineffectiveness of trial or appellate counsel within the Strickland-Fritz test. Moreover, although appellate counsel must be an active advocate in providing assistance on direct appeal, he or she is not required to advance every argument, regardless of merit, urged by the appellant. Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 835, 83 L. Ed. 2d 821, 828 (1985).

 
Affirmed.

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A-4271-07T4

November 10, 2009