STATE OF NEW JERSEY v. EDWARD LYNCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3577-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

EDWARD LYNCH,

Defendant-Appellant.

__________________________________

April 15, 2011

Submitted: February 16, 2011 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-08-0866.

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

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Edward Lynch appeals from the denial of his petition for post-conviction relief (PCR). Defendant is serving a thirty-five year term of imprisonment subject to a No Early Release Act1 85% parole ineligibility term following his conviction of attempted murder, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. We affirmed defendant's conviction and sentence. State v. Lynch, No. A-3819-02 (App. Div. May 21, 2007).

On January 8, 2000, defendant was selling drugs in the hallway of an apartment building in Passaic. Two other drug dealers, Mark Jackson and Warren Grier, were smoking cocaine in an apartment in the building with Jackson's cousin Patricia Jackson and another woman. Mark Jackson and Grier left the apartment, encountered defendant in the hallway, and confronted him about his activities in the building. Defendant and Mark Jackson fought, defendant left the building, but returned with a gun. Defendant fired the gun and struck Mark Jackson three times. The wounds were not life threatening but required medical treatment. About twelve hours later, Mark Jackson identified defendant as the shooter. Patricia Jackson did not identify defendant as the shooter until August 2002. Both Mark and Patricia Jackson recanted their identification at trial.

In December 2007, defendant filed a petition for PCR. Defendant alleged that trial counsel was ineffective because the trial judge omitted the limiting instruction on evidence of other crimes from his charge as specifically requested by defense counsel. Defendant also asserted trial counsel was ineffective for failing to timely object to a question posed by the prosecutor that improperly bolstered the credibility of a State's witness. Furthermore, defendant asserted that appellate counsel erred by failing to raise other significant issues on appeal.

By order dated October 24, 2008, defendant's petition was denied without an evidentiary hearing. Judge Marmo, who was the trial judge, rejected the argument that the defense attorney erred by requesting he omit the other crimes limiting instruction. The judge observed that evidence of drug-dealing was an inextricable part of the trial, that defense counsel was capable and experienced, and that counsel and the judge spoke directly to defendant at trial about omission of this charge. The judge observed that providing the other crimes limiting instruction was the "safe thing" for him to do, but defense counsel argued vigorously for its omission, and he did not believe it appropriate to second-guess an experienced and capable defense attorney. Judge Marmo also found that inclusion of the charge would not have altered the verdict due to the weight of the evidence against defendant, including three eyewitness identifications.

Judge Marmo also rejected the contention that a question asked by the prosecutor, which referred the witness to a document, unduly prejudiced defendant. The judge noted the question was improper, but the information imparted by the witness was a stipulated fact.

At oral argument of the petition, defendant argued that appellate counsel provided ineffective assistance of counsel because she failed to argue that the voir dire of the jury improperly suggested that defendant had an obligation to participate in the trial, failed to argue that the judge erred by omitting the other crimes limiting instruction, and failed to argue that the State improperly bolstered the credibility of a State's witness. Judge Marmo held the arguments were without merit; therefore, appellate counsel had no obligation to raise these arguments.

Judge Marmo also addressed the contention that he improperly suggested during jury voir dire that defendant had an obligation to participate in the trial. Defendant argues that the judge created this impression when he informed the jury they would have opening statements by the prosecutor and defense counsel and statements by counsel at other parts of the trial. The judge held that the issue should have been raised on direct appeal, and that the contention was without merit. In fact, he noted that his voir dire has been reviewed on appeal many times and no error has ever been found.

On appeal, defendant raises the following arguments:

The Court should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

1. Defendant established at least a prima facie case of ineffective assistance of counsel.

2. The voir dire process was tainted by the trial court's preliminary instructions to the jury panel.

3. At the very least, the trial court erred in rejecting defendant's ineffective assistance claims without conducting an evidentiary hearing.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. Otherwise a claim alleging the imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law shall be filed pursuant to R. 3:21-10(b)(5).

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

In a petition for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64; State v. Cummings, 321 N.J. Super. at 170. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Preciose, supra, 129 N.J. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Having thoroughly reviewed this record, we are satisfied that Judge Marmo properly denied this PCR petition without an evidentiary hearing. Each of the issues raised by defendant could be addressed by reference to the trial record. Although an evidentiary hearing may be necessary in some cases to explore the circumstances and reasoning about a strategic decision, this is not such a case.

The specter of drug-dealing permeated the case. The limiting instruction now sought by defendant would have likely confused the jury particularly because defendant presented a defense that he did not shoot the victim but was a convenient person to accuse because he was known to police as a drug-dealer, the place of the shooting was the site of a drug transaction, and defendant was seen near that place. In other words, drugs and drug dealing were inextricably involved in this case.

We also concur with Judge Marmo's evaluation of the other errors cited by defendant. The judge's statements during the voir dire did not suggest defendant had an obligation to participate in the trial, and the State did not impermissibly bolster a State witness. Defendant has failed to demonstrate that counsel performed at a deficient level or that any error committed or allowed by trial or appellate counsel produced an unjust result.

We affirm, therefore, substantially for the reasons set forth by Judge Marmo in his October 24, 2008 opinion.

1 N.J.S.A. 2C:43-7.2.