STATE OF NEW JERSEY v. RONALD GARRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2528-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD GARRY,

Defendant-Appellant.

____________________________

October 19, 2012

Submitted October 3, 2012 - Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment

Nos. 04-01-0105 and 04-01-0106.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General/ Deputy chief Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ronald Garry appeals the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of appellate and trial counsel and a violation of the State's discovery obligation that required an evidentiary hearing. Because we conclude that the trial court properly found the evidence inadequate, we affirm.

The events giving rise to defendant's convictions occurred on October 1, 2003. Defendant got into an argument with a man named Davis in the courtyard of the Baxter Terrace housing Project in Newark. The argument escalated into a fistfight. After on-lookers broke up the fight, both men left the courtyard. Davis went up to his apartment to change his clothes, which had been ripped in the brawl. Defendant left the courtyard to get a gun. When Davis returned to the courtyard, a woman called out a warning to him, and he turned and ran back toward his building. Defendant fired at his retreating figure. Davis escaped injury, but two women standing at a window watching the events were hit by shattering glass and a stray bullet. One of the women died of her injuries. Defendant was arrested as he tried to flee the complex. No gun was recovered.

Defendant was indicted on charges of first-degree murder, N.J.S.A. 2C:11-3a(1), first-degree attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1, second degree aggravated assault, N.J.S.A. 2C:12-1b(1), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was charged in a second indictment with second-degree possession of a firearm by a person convicted of a crime and not permitted to have a gun, N.J.S.A. 2C:39-7b, commonly known as a certain persons weapons offense. Following a trial on the two indictments, defendant was convicted of the lesser-included offense of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), the lesser-included offense of second-degree attempted passion/provocation manslaughter, N.J.S.A. 2C:5-1 and 2C:11-4b(2), second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and all weapons offenses charged in the indictments.

Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Garry, No. A-3869-04T1 (App. Div. June 8, 2006). The Supreme Court granted certification limited to defendant's sentence, and summarily remanded to the trial court for resentencing in light of State v. Natale, 184 N.J. 458 (2005) and State v. Pierce, 188 N.J. 155 (2006). Judge Betty Lester imposed the same sentence, which we reviewed on a sentencing calendar, R. 2:9-11, and affirmed. The Supreme Court denied defendant's petition for certification. State v. Garry, 199 N.J. 130 (2009).

In his PCR petition, defendant contended that he received ineffective assistance of counsel chiefly because his appellate lawyer failed to challenge Judge Lester's charge on lesser-included offenses. Defendant also contended that trial counsel failed to pursue a gun powder residue test that defendant claims was performed by the police following his arrest, which exonerated him. He claimed that the State's failure to turn over this exculpatory evidence required reversal under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). He further claimed that he was deprived the effective assistance of counsel by his trial lawyer's failure to retain a ballistics expert, pursue certain witnesses and investigate the psychiatric history of others, fully advise him of his right to testify, and object to the judge's questioning of a witness.

After hearing argument, Judge Fullilove determined in an oral opinion on July 12, 2010, that, because the evidence submitted, viewed in the light most favorable to defendant, did not establish a prima facie case of ineffective assistance of counsel or a Brady violation, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462-63 (1992). The judge determined that the lesser included offense of passion/provocation was properly charged on the facts adduced at trial, and that because it "was not a winable issue" on appeal, defendant had failed to satisfy the second prong of the Strickland/Fritz test,1 namely, that had appellate counsel briefed the issue it would have led to a different result.

The judge further determined that a review of the trial record revealed that trial counsel had aggressively pursued the absence of gun powder residue test results, both before and during trial, and thus defendant could not establish that trial counsel's performance was deficient as required under the first prong of the Strickland/Fritz test. Further, because defendant had no proof that the prosecution had withheld the results of a gun powder residue test that was never performed, and thus no proof of a Brady violation, trial counsel was not derelict in not pursuing the claim.

Judge Fullilove found that trial counsel's efforts to secure a ballistics expert were included in the record, and that counsel had expressly advised the trial judge that she would not pursue the defense, presumably because the inquiry was not favorable to defendant. The judge thus concluded that defendant's claim of ineffective assistance for failure to retain a ballistics expert could not satisfy either prong of Strickland/Fritz.

The judge further found that although defendant claimed that he wished to testify at trial that he had won the fight and thus had no reason to shoot anyone, his counsel was not deficient in having strategically advised against his testifying in light of his prior weapons conviction. Further, given the testimony of several eye-witnesses who identified defendant as the man shooting in the courtyard, the judge found that his testimony would not have changed the outcome of the trial. Finally, the judge concluded that none of defendant's other claims as to witnesses would have led to a different outcome, given that several witnesses, including Davis, the man defendant was shooting at, testified that defendant was the shooter.

Defendant renews these arguments on appeal and adds that his petition should not have been dismissed without an evidentiary hearing:

POINT I:

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE STATE WITHHELD EXCULPATORY EVIDENCE.

POINT IV:

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT V:

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

A judge's decision as to whether to hold an evidentiary hearing on a PCR petition alleging ineffective assistance of counsel is discretionary. Preciose, supra, 129 N.J. at 462. No hearing is required unless defendant has established a prima facie case, that is, a reasonable likelihood of success under the Strickland/Fritz test. Ibid. Under this two-part test, a defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness," and, second, that "there is 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 687-88, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed., at 693, 698. A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2011) (citing Fritz, supra, 105 N.J. at 60).

Our review of the record convinces us that Judge Fullilove carefully considered each of defendant's claims. We agree that defendant failed to demonstrate that the performance of his trial or appellate counsel was substandard or that, but for any of their alleged errors, the result would have been different as required by Strickland/Fritz. Accordingly, we affirm substantially for the reasons expressed by Judge Fullilove in his oral opinion.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668,687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).