STATE OF NEW JERSEY v. ANTIONE D. STEVENS

NOT FOR PUBLICATION WITHOUT THE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.

ANTIONE D. STEVENS,

Defendant-Appellant.

________________________________

SubmittedMay 28, 2014 Decided June13, 2014

Before Judges Sabatino and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0871.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Antione D. Stevens, who was convicted of first-degree robbery and other related offenses after a 2007 jury trial, appeals the trial court's dismissal of his petition for post-conviction relief ("PCR"). After considering his contentions in light of the record and the applicable law, we affirm.

The State's proofs establishing defendant's guilt are set forth in detail in our prior unpublished opinion affirming defendant's conviction, and we incorporate that discussion here. See State v. Antione Stevens, No. A-4180-08 (App. Div. Mar. 11, 2011). In brief, defendant participated with three young females in robbing a Hispanic male pedestrian at gunpoint in West New York on December 5, 2006. Defendant was positively identified as a participant by both the robbery victim and by one of the females who took part in the episode. The testimony established that the gun used in the robbery had been furnished by defendant. A police officer who responded to the scene observed defendant discard the gun, and the officer also recovered the gun's ammunition clip.

The trial court sentenced defendant to an aggregate custodial sentence of twenty years.1 We remanded the case to have the trial court clarify certain aspects of the sentencing analysis. Stevens, supra, slip op. at 11-16. Defendant filed a petition for certification, which was dismissed for lack of prosecution. He then filed the present PCR application, alleging ineffectiveness of his trial counsel concerning: (1) counsel's handling of an issue of potential juror misconduct and failure to request a mistrial; and (2) counsel's alleged failure to communicate a more favorable plea offer to him before trial.2 The trial court rejected these PCR contentions without an evidentiary hearing.

On appeal, defendant presents through his counsel the following arguments:

POINT ONE

THE PCR COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AS DEFENDANT HAS ESTABLIS[H]ED A PRIMA FACIE CASE SUFFICIENT TO REQUIRE REMAND FOR AN EVIDENTIARY HEARING.

POINT TWO

THE PCR COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF AS THE ASSISTANCE OF TRIAL COUNSEL WAS INEFFECTIVE.

In addition, defendant presents the following arguments in a pro se supplemental brief:

POINT I

A. Defendant[] was denied His Constitutional Right to be Present at Every Stage of the Trial as Guaranteed by the 6th & 14th Amendment, also under the N.J. Const., Art. 1, Par. 10 & Under R. 3:16(b) of the N.J. Court Rules.

B. The Defendant was Denied His Right to an Open and Public Trial.

The applicable law for evaluating these arguments is well- settled. Under the Sixth Amendment of the United States Constitution, a criminal defendant is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, the defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . .[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)).

Defendant's first claim of ineffective assistance of counsel stems from circumstances that arose at trial when Juror Number 4 reported that Juror Number 10, an African American woman, allegedly had remarked that the robbery victim got what he deserved because he did not speak English. When this allegation came to the attention of the court and counsel, the trial judge interviewed each of the jurors individually in camera and inquired about whether they had overheard another juror make a comment about the victim's inability to speak English. All of the jurors, except for Number 4, denied overhearing any such comment by another juror. Following those interviews, both the assistant prosecutor and defendant's trial counsel were satisfied with the court's inquiries of the jurors, and did not request any further action. The judge concluded that there was no evidence that the jurors had been tainted by the alleged comment and that there was no prejudice. In fact, the judge expressed doubts as to whether the alleged comment was made at all. The case proceeded to verdict and the deliberating jurors, who did not include Juror Number 4, found defendant guilty on all counts charged in the indictment.

Defendant now contends that his trial counsel was constitutionally ineffective in failing to ask the trial judge to make more specific inquiries of the jurors about the supposed remark. Defendant further contends that his trial counsel should have requested a mistrial. We agree with the trial court and the State that these arguments lack merit.

The judge appropriately followed well-settled procedures in questioning the jurors individually about the alleged remark. See, e.g., State v. Bey, 112 N.J. 45, 86-87 & n.26 (1988); State v. Scherzer, 301 N.J. Super. 363, 486-96 (App. Div.), certif. denied, 151 N.J. 466 (1997). The judge wisely framed the inquiries to the jurors in a neutral and relatively generic fashion, in order to minimize the possibility that the questions themselves might trigger prejudicial repercussions. Moreover, even if the unconfirmed remark by Juror Number 10 had actually been made, it is likely that any animus against the victim shown by that remark would have been prejudicial to the State, rather than to defendant. The judge did not misapply his discretion in handling the matter as he did, and defendant's trial attorney was not deficient in accepting the court's manner of investigation and its decision to continue the case with the empanelled jurors. There was no necessity for defense counsel to seek a mistrial as the "extreme remedy" of "last resort." State v. Hightower, 146 N.J. 239, 274 (1996). Even if such a motion had been made, the court would have had a sound basis to deny it.

Defendant separately contends that his trial counsel failed to communicate to him before trial an alleged plea offer by the State calling for a five-year sentence. He presents no documentary proof, however, that such a generous five-year plea offer was ever extended in this case. In the transcript at defendant's sentencing hearing, the assistant prosecutor stated that the State plea offer before trial was for a fifteen-year term, which defendant rejected. Defendant did not submit a certification from his trial counsel substantiating any plea offer of less than fifteen years.

We recognize that criminal defense counsel have an obligation under the Sixth Amendment to convey plea offers to their clients and render effective assistance in plea restorations. See Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). Nevertheless, that general principle is of no consequence here, where defendant has made no prima facie showing that a lesser plea offer was ever made by the prosecution. An evidentiary hearing on this PCR issue was not required, given that defendant's contentions are solely based upon his own "bald assertions" of the existence of a lesser plea offer. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Preciose, 129 N.J. 451, 460 (1992) (requiring a prima facie showing of ineffective assistance before an evidentiary hearing is required); R. 3:22-10(b) (same).

We have considered the balance of defendant's arguments, including those presented in his pro se supplemental brief, and conclude that they lack sufficient merit to be discussed in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 The original judgment of conviction expressed the aggregate term as thirty-five years, but that was subsequently corrected with an amended judgment providing for a twenty-year aggregate term.

2 Defendant also unsuccessfully argued that his trial counsel was ineffective in failing to object to certain lay opinion testimony from one of the State's witnesses. He has not discussed that issue in the argument portion of his appellate brief, and therefore it is waived. Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011).