STATE OF NEW JERSEY v. KEVIN WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN WILLIAMS,

Defendant-Appellant.

________________________________________________________________

October 30, 2013

Submitted October 8, 2013 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-05-652.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief.

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kevin Williams participated in the brutal beating and robbery of a garbage truck driver. He appeals from the June 29, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

A jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). After the victim testified, he remained seated in the courtroom and subsequently identified defendant by his voice after defendant spoke in open court. Although remanding for resentencing, we affirmed his convictions on direct appeal in a published opinion. State v. Williams, 404 N.J. Super. 147 (App. Div. 2008) certif. denied, 201 N.J. 440 (2010). Upon remand, the convictions were merged and defendant was sentenced to an extended term of thirty years, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Assigned defense counsel raises the following issues on appeal:

POINT I: THE COURT ERRED IN FINDING THAT ALL OF THE ERRORS CLAIMED RELATING TO THE VOICE IDENTIFICATION WERE HARMLESS BECAUSE THERE WAS SUBSTANTIAL OTHER EVIDENCE THAT DEFENDANT WAS THE VICTIM'S ASSAILANT. (NOT RAISED BELOW)

POINT II: TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE VICTIM REMAINING IN THE COURTROOM AFTER HE TESTIFIED.

POINT III: THE COURT FAILED TO HOLD A CHARGE CONFERENCE. R.1:8-7(b). (NOT RAISED BELOW)

POINT IV: TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A JURY CHARGE ON IDENTIFICATION.

POINT V: THE COURT ERRED IN ITS RULING THAT THE ADMISSION OF TESTIMONY OF THE ARREST WARRANT FOR DEFENDANT WAS HARMLESS ERROR, AND THEREFORE NOT INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VI: THE COURT ERRED IN ITS RULING THAT THE CUMULATIVE EFFECT OF THE ERRORS OF TRIAL COUNSEL DID NOT ESTABLISH A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VII: THE COURT ERRED IN ITS RULING ON THE PRO SE CLAIMS IN DEFENDANT'S PETITION.

POINT VIII: COUNSEL RENDERED INEFFECTIVE ASSISTANCE ON THE MOTION TO SUPPRESS EVIDENCE.

In a supplemental brief, filed after the State's brief, defendant raises the following issue:

DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT DEMANDING MR. WILLIAMS' PRESENCE AT THE HEARING TO DETERMINE THE RESPONSES TO THE JURY QUESTIONS

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 57-58 (1987).

Most of the issues raised by defendant in his PCR conviction were decided on direct appeal and therefore not properly the subject of PCR. R. 3:22-5. The issues raised in Points I, II, IV and VIII of defendant's brief are substantially similar to those raised on direct appeal and thus procedurally barred. State v. Nash, 212 N.J. 518, 546 (2013).

In Point III of his brief, defendant argues for the first time that the court erred in not holding a charge conference on the record pursuant to Rule 1:8-7(b).1 We do not consider an argument raised for the first time on appeal unless defendant can demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Additionally, this argument could have been raised on direct appeal and therefore is not properly argued in a PCR petition. R. 3:22-4(a)(1). Even if we were to consider this issue in this posture, because we held on direct appeal that the defendant's objection to the charge given was unfounded, Williams, supra, 404 N.J. Super. at 165-66, any failure to hold a charge conference was not capable of producing an unjust result.

Defendant's pro se supplemental brief and a few lines in his attorney's brief argue that trial counsel was ineffective in not demanding defendant's presence for the in-chambers conference where counsel agreed on how the court should answer the jury's six factual questions.2 Although defendant is clearly entitled to be present at every critical stage of the proceedings, Rule 3:16(b), he presents no legal support for his contention that conferring on the answers to jury questions was such a critical phase in his trial. See State v. Childs, 204 N.J. Super. 639, 646-47 (App. Div. 1985) (affirming the procedure of responding to a jury note by conference with counsel out of the presence of defendant); see also State v Dellisanti, 203 N.J. 444, 457-58 (2010) (explaining that a defendant must demonstrate a reasonable possibility that injustice has been done in order to successfully challenge his involuntary absence from a part of the proceedings on due process grounds). The impropriety of this in-chambers procedure was argued on direct appeal and thus defendant may not raise it again on PCR. R. 3:22-5. Additionally, even if we accept that counsel should have insisted on defendant's presence, defendant's failure to be present did not lead to prejudice. See State v. L.A., ___ N.J. Super. ___, ___ (App. Div. 2013) (slip op. at 18-26) (discussing the definition of "prejudice" in the context of PCR). The questions were factual in nature and demanded straightforward answers, which were given by the court. Defendant does not specify his objection to any of the answers provided. On direct appeal, after we concluded that the answers to the questions constituted stipulated facts, we stated, "Furthermore, we find no basis for defendant's contention that the responses were capable of producing an unjust result." Williams, supra, 404 N.J. Super. at 169.

The remaining issues raised by defendant are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).

1 As this issue is raised for the first time over eight years after trial, it could be that such a conference was held, either on the record, but the transcript inadvertently not obtained, or off the record.

2 The questions were: (1) "What is a balaclava?", (2) "How tall is the defendant?", (3) "Was there a warrant? And what was the warrant for?", (4) "Copies of police reports?", (5) "Did they search his residence?" and (6) "Was [co-defendant] released between the time of his arrest and the time the defendant was arrested?"