STATE OF NEW JERSEY v. JAMES MARLIN

NOT FOR PUBLICATION WITHOUT THE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.

JAMES MARLIN,

Defendant-Appellant.

October 8, 2014

Submitted September 24, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-12-1564.

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

Andrew C.Carey, MiddlesexCounty Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Marlin appeals from a November 27, 2012 Law Division order denying his petition for post-conviction relief (PCR) after oral argument, without an evidentiary hearing. We affirm.

I.

We glean the following facts and procedural history from the record on appeal.

Following a 2006 jury trial, defendant was convicted of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). Defendant was acquitted of third-degree unlawful possession of a weapon, a BB gun, without having obtained a permit, N.J.S.A. 2C:58-4 (count six); and certain persons not to possess a weapon, N.J.S.A. 2C:39-7, charged in a separate indictment. His co-defendant, Edwin Villegas, earlier pled guilty to counts two and five, and testified against defendant at trial pursuant to a plea agreement.

On February 2, 2007, defendant was sentenced to an eighteen-year prison term for the first-degree armed robbery conviction, and a concurrent ten-year prison term for the second-degree conspiracy conviction, both subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On direct appeal we affirmed defendant's conviction, but remanded for reconsideration of sentence in light of the disparate five-year NERA sentence received by Villegas. State v. Marlin, A-4791-06 (App. Div. Jan. 7, 2009). On February 27, 2009, defendant was re-sentenced to an aggregate sixteen-year prison term, subject to NERA. Defendant appealed the sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar, and affirmed. State v. Marlin, A-3887-08 (App. Div. Feb. 9, 2010). The Supreme Court denied certification. State v. Marlin, 203 N.J. 439 (2010). For reasons that are unclear from the record, an amended judgment of conviction (JOC) was entered on April 14, 2011, merging count one with count two and vacating the concurrent ten-year prison term that had been imposed on count one.

In our January 7, 2009 opinion affirming defendant's conviction, we outlined the underlying facts as follows

On October 5, 2005, defendant drove a white Honda, belonging to his girlfriend, Jacqueline Hayes, to Villegas's home. After picking up Villegas, defendant parked the car in a lot two blocks from South Pines Liquors, located in Sayerville. According to Villegas, defendant showed him a BB gun, which looked like a nine-millimeter pistol, and suggested that they rob the liquor store. Villegas described the gun as broken, with tape holding it together.

Villegas testified that defendant outlined a plan in which they would enter the store and as he walked toward the back, defendant would purchase something at the cash register. When the cash register was open, Villegas would hold the gun to the cashier and defendant would take the money from the cash register. Defendant could not carry the gun because the clerk in the store knew him as a frequent patron.

After telling Villegas of the plan, defendant drove to the liquor store, parked the car across the street, and he and Villegas entered the store. Villegas walked toward the back while defendant went to the cash register to purchase gum. When Villegas ran to the front of the store and pointed the gun at the cashier, defendant did not take the money from the cash register, but took the gum he had just purchased and left the store.

Villegas testified, "I was already there so I decided that I had to do the robbery myself since he left." He took the money from the cash register and asked the cashier for the keys to the lottery machine. When the cashier did not turn over the keys, Villegas had him lie on the floor in front of the cash register and took approximately $300 from his pockets. Villegas then left the store, having taken approximately $900. He got into the white Honda where defendant was waiting and defendant drove away. Villegas gave defendant $500 and he kept $400.

Video surveillance cameras at the store recorded the Honda arrive minutes before the robbery and captured the robbery from the time that defendant and Villegas entered the store until Villegas left. The cashier's statement to the police and the surveillance footage corresponded to Villegas's testimony regarding the events that took place inside the store.

The next day, the police issued a press release describing the individuals who had robbed the store and the time of the incident. The release did not mention the video. On October 7, 2005, Detective David Lasko received a phone call in response to the press release. The caller, who identified himself as Michael, questioned whether there was a video of the incident. Lasko obtained two cell phone numbers from the caller and informed Officer Russell Anderson, who returned the call. The man with whom Anderson spoke claimed to be friends with one of the individuals who had been in the store at the time of the robbery. He claimed, however, that his friend had nothing to do with the robbery. He repeatedly asked whether there was a video of the incident; Anderson did not answer his question. Anderson testified that the man stated, "I was only buying gum."

After Anderson learned that the phone numbers were registered to defendant and defendant's sister, he obtained a photograph of defendant and identified him as the individual on the video who purchased gum. Anderson and another detective went to Hayes's apartment, where they saw the white car that was shown in the surveillance video. Hayes told the detectives that on October 5, 2005, defendant had picked up her car. She permitted the police to search the car where they found the handle of a handgun, possibly from a BB gun, under the front passenger seat. The handle did not have tape on it.

Anderson subsequently interviewed defendant, who claimed that on October 5, 2005, he was driving with a friend named Edwin, who told him to stop at South Pines Liquors. Defendant claimed that he had no knowledge that Edwin planned to rob the store. Defendant subsequently told the police that the person who robbed the store was Edwin Villegas.

[Marlin, supra, slip op. at 5-8.]

Defendant timely filed his pro se PCR petition on January 17, 2012, claiming ineffective assistance of trial and appellate counsel. Assigned counsel subsequently filed a supplemental brief expanding on defendant's arguments. Following oral argument on November 9, 2012, Judge Alan Rockoff delivered a thorough oral decision outlining his reasons for denying PCR. A confirming order was entered on November 27, 2012. This appeal followed.

II.

Defendant raises the following issues on appeal

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL

THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO REQUEST A MISTRIAL OR, IN THE ALTERNATIVE, A STRONG CURATIVE INSTRUCTION, ARISING OUT OF TESTIMONY ELICITED BY THE STATE FROM DETECTIVE RUSSELL ANDERSON WHICH INFERENTIALLY CONNECTED THE DEFENDANT WITH PRIOR CRIMINAL ACTIVITY

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL

Defendant focuses on testimony elicited by the State through Detective Anderson that, he argues, inferentially connected him with prior criminal activity. Defendant contends that trial counsel was ineffective in failing to request a mistrial, or alternatively a curative instruction. Defendant also claims that appellate counsel was ineffective for failing to raise this issue on direct appeal.

To properly understand the basis for the PCR court's decision, we first look to the context in which Anderson's alleged improper testimony was elicited. As noted, Anderson had investigated a phone call from an individual who identified himself as Michael, questioning whether there was a surveillance video of the liquor store robbery. The caller left two telephone numbers, which Anderson learned were registered to defendant and defendant's sister. Anderson then obtained a photograph of defendant through the Division of Motor Vehicles (DMV), and identified defendant as the person shown buying gum on the video surveillance. DMV records also listed a Sayreville address for defendant, within a quarter-mile of the liquor store where the robbery occurred.

After ascertaining defendant's identity, the prosecutor's questioning of Anderson then turned to the other suspect in the robbery, who had not yet been identified. The following exchange took place between the prosecutor and Anderson, which is the focal point of defendant's ineffective assistance argument

[PROSECUTOR]: Now I am going to move a little bit further now that you have an address allegedly from Mr. Marlin. What did you do with that address with the information?

[WITNESS]: The [sister's] address?

[PROSECUTOR]: Yes?

[WITNESS]: I solicited the New Brunswick police department Street Crimes Unit to see if they could identify the second suspect and also view the video.

(Whereupon the following is heard at sidebar:)

THE COURT: This is a problem now.

[PROSECUTOR]: If you listen to what he said it doesn't refer to Mr. Marlin, he says he went to the [S]treet [C]rimes [U]nit to see if he could identify the second suspect.

THE COURT: Oh, second suspect.

[PROSECUTOR]: Can you read it back - -

THE COURT: You are right, I'm sorry.

[DEFENSE COUNSEL]: Well.

THE COURT: That is good.

[DEFENSE COUNSEL]: It is okay, I think but I am not sure.

Defense counsel did not move to strike Anderson's answer, nor did he move for a mistrial or request a curative instruction. Defendant argued to the PCR court, as he does on appeal, that Anderson's remarks were ambiguous and could have suggested to the jury that defendant had prior adverse contact with the police. Defendant contends that the failure of trial counsel to object or seek either a mistrial or curative instruction constituted ineffective assistance, as did appellate counsel's failure to raise this issue on appeal.

In rejecting defendant's argument, Judge Rockoff reasoned

Now in this case, in viewing the exchange from the record, it appears clear to this [c]ourt that the detective was referring to the codefendant Villegas. Detective Anderson states that after he received an address from Marlin, the defendant, he went to the New Brunswick Police to see if they could identify the second suspect. If [] Detective Anderson already had identified Marlin and had received his address, he would not have gone to police headquarters in New Brunswick to seek to identify him all over again. Therefore, I believe it is clear the defective [was] referring to Edwin Villegas and no curative instruction or motion for mistrial was needed here. And if no motion was required, defendant's claim for ineffective assistance of counsel for failing to request the curative instruction or mistrial is misguided.

Now even if there was some chance the jury had misinterpreted that statement, it seems very unlikely the jury's knowledge of Detective Anderson's reaching out to New Brunswick Police for assistance in identifying a suspect changed the results of the trial here. Because Detective Anderson was investigating a crime, it's only logical that he would reach out to a law enforcement agency another law enforcement agency for assistance in identifying a suspect. That statement alone does not infer that, that suspect must have a prior history.

Therefore, even if it was an error of [] defense counsel, not to have objected to this testimony, it's not likely to have prejudiced the jury to the extent that it would have a manifest denial of [] justice and affect the verdict and change the outcome of this case. [T]hat claim falls as well, as not having been proven by a preponderance of the evidence that there's ineffective assistance of counsel.

After our careful review of the record, we agree with Judge Rockoff's analysis, and affirm substantially for the reasons set forth in his thoughtful oral decision. We add the following brief comments.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Preciose, 129 N.J.451, 459 (1992). 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).

The mere raising of a claim for PCR does not entitle the 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 only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J.at 459-64. See alsoState v. Jones, ___ N.J.___, ___ (2014) (slip op. at 16). To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland, supra, 466 U.S.at 687, 104 S. Ct.at 2064, 80 L. Ed. 2d at 693; see alsoState v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis in New Jersey).

The Stricklandstandard applies as well to a defendant's claim of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif.denied, 194 N.J.444 (2008). Nevertheless, an appellate attorney is not required to advance every argument the defendant urges, even if the argument is not frivolous. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3312-13, 77 L. Ed. 2d 987, 993-94 (1983); Gaither, supra, 396 N.J. Super.at 515-16. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones, supra, 463 U.S.at 751-52, 103 S. Ct.at 3313, 77 L. Ed. 2d at 994.

Viewing the record as a whole, it is clear that Anderson's disputed testimony centered on his efforts to identify the second suspect, Villegas. By that point in Anderson's testimony, defendant's identity had already been ascertained, as had his Sayreville address. The police were then attempting to ascertain the identity and location of the second suspect. Defendant later provided Anderson with a street address for Villegas in New Brunswick, and Anderson commented on contacting the New Brunswick police. Contrary to defendant's argument, we find no ambiguity in the record, which when viewed in its proper context makes clear that Anderson's testimony related to police efforts to identify Villegas, not defendant.

Even if Anderson's testimony could somehow be deemed ambiguous and suggestive of defendant's prior police involvement, we agree that any error in admitting this single fleeting remark was unlikely to have changed the result. Both Villegas and the liquor store cashier testified. Their testimony regarding the events that occurred in the store was consistent with the events depicted in the surveillance video, which was shown to the jury. The video surveillance also depicted the vehicle defendant drove from the robbery scene. Defendant's girlfriend, Hays,1testified that defendant took the car the day of the robbery. Hays gave consent to search her vehicle, which yielded a gun handle. Her testimony corroborated Villegas' description of the broken BB gun used in the robbery. Moreover, the record is devoid of any showing that Anderson actually received any information from the New Brunswick Police Department suggesting its prior involvement with either defendant or Villegas.

Accordingly, we conclude that trial counsel was not ineffective in failing to object, move for a mistrial, or seek a curative instruction, since such efforts would have been fruitless. Moreover, the admission of Anderson's isolated remark fails to establish the Stricklandprejudice prong. For the same reasons, we conclude that defendant's ineffective assistance of appellate counsel argument also fails. Because defendant failed to present a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required. Preciose, supra, 129 N.J.at 462.

Affirmed.

1 We note this spelling of Hays' name in the trial transcript differs from the inadvertent misspelling of her name as Hayes in our earlier opinion on defendant's direct appeal.