STATE OF NEW JERSEY v. DEAN LEE

NOT FOR PUBLICATION WITHOUT THE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.

DEAN LEE,

Defendant-Appellant.

July 25, 2014

Submitted February 25, 2014 Decided

 
Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-05-1497.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dean Lee appeals from the August 31, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Tried by a jury, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The first-degree conspiracy to commit murder count, N.J.S.A. 2C:5-2, was dismissed on defendant's motion at the close of the State's case. After its initial verdict, defendant was separately tried before the same jury on a charge of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7, and was convicted of that offense as well.

On appeal, we affirmed the jury's verdict but remanded for amendment of the judgment of conviction to reflect that the possession of a weapon for an unlawful purpose merged with murder, pursuant to State v. Diaz, 144 N.J. 628 (1996), and for the trial judge to reconsider the sentence on the certain persons offense, pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II). State v. Lee, No. A-3770-04 (App. Div. May 10, 2007) (slip op. at 3). Defendant's petition for certification was denied. State v. Lee, 192 N.J. 294 (2007). Although we were not provided with a copy of any judgment of conviction, we will assume from the absence of any comment on the subject in either brief, that on some unspecified date after the remand defendant's original aggregate sentence of sixty-four years imprisonment subject to parole ineligibility of thirty-three years was reimposed. Defendant filed a timely PCR petition, contending that counsel was ineffective for failing to call a witness, Gilbert Nickens, who allegedly would have testified that defendant was not present at the murder scene and that the shooter was the now deceased Damon Frazier.1

We summarize the facts developed at defendant's trial as recounted in our opinion affirming defendant's conviction. On March 22, 2000, the victim, Santiago Peralta, a drug dealer, was found by police lying in the middle of the street, dead of a gunshot wound to the head. He was four to six feet away from the driver's side of his automobile, a red four-door Ford Tempo.

Darren Johnson, an eyewitness, testified that he was standing outside of the home of a friend when he saw a red car pull up and Peralta get out and go into an alley. After ten or fifteen minutes, Johnson heard an argument. Peralta ran out of the alley and struggled to get into his car, chased by two men. One of the two men, who Johnson knew from the neighborhood, was defendant. As Peralta drove away, he looked back and hit some parked cars. As Johnson walked to the corner, he saw the Tempo continue across the intersection and crash again. Defendant and his companion ran up to the car. Defendant stood at the passenger's side while the other man went to the driver's side. Peralta attempted to get out of the car; Johnson heard gunshots. A black Nissan Maxima pulled up, the shooters got into the vehicle, and were driven away.

A second eyewitness was Kimberly Walker, who, along with her father, her mother, and a friend, was driving past the scene. She recognized defendant from the neighborhood and saw him running up the street toward a red car. Walker saw defendant near the open passenger door and heard gunshots as he continued to stand next to the car. Defendant walked away and got into a black Nissan Maxima. When Walker and her father walked over to the red car, she saw a man who had been shot in the head lying in the street.

About half an hour later, Walker saw defendant walking by her home accompanied by Frazier, with whom she was also acquainted. She did not see Frazier at the scene of the shooting. It was not until the police came to her home on May 24, 2001, that Walker agreed to give a statement and identified defendant from a photo array. She had not reported what she had seen because she was afraid.

Defendant initially told police that he was at the apartment of his girlfriend, Dorian Baker, when the shooting occurred. He claimed that Frazier stopped in and told him that he and another man were responsible for the shooting, because the victim had short-changed him on a drug deal. Defendant gave details of the incident, allegedly provided to him by Frazier.

Contrary to his initial statement to police, at trial defendant testified that, on the night in question, he drove to the Garden State Correctional Facility in Yardville to visit an inmate, while in the company of Terrence Woods, who also testified. When they left the facility, it was approximately 8:55 p.m., and defendant stopped at a payphone so that he could call his other girlfriend. Defendant and Woods then drove back to his apartment in Maple Shade, arriving home between 9:55 and 10:05 p.m. At trial, defendant called various alibi witnesses. He was nonetheless convicted.

Subsequently, Nickens claimed that Frazier was the lone gunman. He also certified that "there was no[ one] else near the red car who shot the gun."

In his written decision denying defendant's petition, the PCR judge stated that he did not find Nickens's certification credible. It "contradicted defendant's own version of the events." Additionally, Nickens failed to explain why he did not contact the police, although he claimed that he had discussed the matter with defendant's attorney. The judge also observed that none of the witnesses who testified at trial "ever mentioned [] Nickens as being present at the scene of the crime." Under those circumstances, it would have "been sound trial strategy to avoid calling Nickens to testify, preventing significant, unnecessary contradiction."

Defendant did not provide an affidavit from his first attorney, corroborating defendant's claim that he knew about Nickens's potential testimony. He did not provide an affidavit from his second attorney, corroborating that he had not been told about Nickens.

The PCR judge also found that Nickens's certification was not newly discovered evidence. Defendant claimed that his first attorney had the information. Thus, by definition, it could not be "newly discovered." Even if only defendant was aware of it, it was not newly discovered evidence. Lastly, the court found that, even if the first attorney failed to provide the information concerning Nickens to the second attorney, failure to present the jury with Nickens's version of the events had no prejudicial impact on the outcome.

This appeal followed, in which defendant argues:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF

(a) Original counsel was ineffective for failure To disclose the existence of a[n] exculpatory Witness to subsequent trial counsel

POINT II

DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF BASED ON NEWLY DISCOVERED EVIDENCE

POINT III

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING THAT HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF

We find no merit in these contentions.

Generally, PCR is a "safeguard that ensures that a defendant was not unjustly convicted." State v. Nash, 212 N.J. 518, 540 (2013) (internal quotation marks omitted). A petition for PCR essentially acts as a defendant's final opportunity to contest the "fairness and reliability of a criminal verdict in our state system." Ibid. (internal quotation marks omitted). Ultimately, if a mistake created an injustice in the preceding trial or sentencing, a PCR hearing provides a defendant with his or her last chance to redress such an error. State v. Hess, 207 N.J. 123, 144-45 (2011).

A defendant must establish by a preponderance of credible evidence that he is entitled to the relief requested. Nash, supra, 212 N.J. at 541. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

In order to obtain relief for the ineffective assistance of trial or appellate counsel, a defendant must allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, 216 N.J. 577, 579 (2014). A defendant "must show both (1) that counsel s performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.

To satisfy the first factor, defendant is required to show "that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (internal quotation marks omitted). The critical inquiry is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." State v. Perry, 124 N.J. 128, 147 (1991) (internal quotation marks omitted). Generally, a reviewing court proceeds from the "strong presumption that counsel's performance falls within the wide range of [reasonable] professional assistance." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305, 323 (1986) (internal quotation marks omitted). Therefore, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Regarding the second Strickland/Fritz factor, defendant must demonstrate that there was a reasonable probability that the proceeding's outcome would have been different but for his counsel's conduct. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In this context, it is insufficient for defendant to merely demonstrate that his counsel's errors "had some conceivable effect on the outcome of the proceeding [since] [v]irtually every act or omission of counsel would meet that test." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.

On appeal, the standard of review of a denial of a PCR petition is whether the PCR court's findings were supported by sufficient credible evidence. State v. Nu ez-Vald z, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we engage in "highly deferential" scrutiny with an eye to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations omitted). Indeed, ineffective assistance of counsel is not proven by merely showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. State v. DiFrisco, 174 N.J. 195, 220-21 (2002). Quite to the contrary, trial counsel's informed strategic decisions demand our heightened deference, State v. Savage, 120 N.J. 594, 617-18 (1990); Fritz, supra, 105 N.J. at 52; State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002), and "are virtually unchallengeable," Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Among the most difficult strategic decisions is "[d]etermining which witnesses to call." Arthur, supra, 184 N.J. at 320. Like all strategic decisions, it demands our heightened deference. Id. at 320-21.

In this case, the trial judge found Nickens's certification to be incredible, a judgment supported by the record. Nickens's description of the incident differed not only from that of eyewitnesses but, also from defendant's own version. Nickens's failure to come forward at the time, assuming the statements were true, was unexplained. In order to prevail on his claim of ineffective assistance of counsel, defendant needed, at a minimum, to establish that the testimony, allegedly overlooked by counsel, was truthful. We see nothing in the record that would cause us to disturb the judge's finding that Nickens's certification was incredible. Therefore, even if we assume, as defendant contends, that Nickens spoke to defendant's first attorney, that he was not called at trial clearly does not establish ineffective assistance.

Because Nickens's information was not credible, defendant fell woefully short of establishing a reasonable probability that, but for counsel's failure to call Nickens, the outcome of his trial would have been different. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. To the contrary, we agree with the PCR judge that calling Nickens as a witness would have undermined the defense.

It is self-evident that if defendant's first attorney knew about Nickens the evidence could not have been "newly discovered." Newly discovered evidence must be material and not merely cumulative, impeaching, or contradictory, discovered since the trial, not reasonably discoverable beforehand, and of such a nature that it would have affected the jury's verdict. See State v. Carter, 91 N.J. 86, 121 (1982). Since defendant presented other alibi witnesses at trial, the evidence would also have been cumulative.

Affirmed.

1 In support of the petition, defendant also presented an affidavit from Luis Velazquez, an alleged eyewitness, who claimed that he too saw Frazier shoot the victim five times and that defendant was not in the area when the killing occurred. In response, the State presented several different documents that, according to the PCR judge, detailed "Velazquez's retraction of his pre-trial statement indicating Damon Frazier as the shooter." The judge also noted that included in those documents was Velazquez's statements that he was approached "at least eight (8) times" by two men who coerced him into giving a false statement implicating Frazier as the gunman. "Velazquez admitted to intentionally providing the false written statement, fearing possible retaliation against him and/or his mother, by defendant and/or defendant's friends, if he continued to refuse." Defendant does not raise the judge's refusal to allow him to use the Velazquez certification in his appeal.