STATE OF NEW JERSEY v. STEVEN MCNEIL

NOT FOR PUBLICATION WITHOUT THE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.

STEVEN MCNEIL,

Defendant-Appellant.

__________________________________

March 27, 2014

Submitted March 17, 2014 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-11-00946.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Steven McNeil appeals from the Law Division's October 2, 2008 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On November 9, 2000, a Burlington County grand jury issued an indictment charging McNeil with eight counts of violating several drug crimes committed on January 27, 2000, and March 14, 2000. After severance, the three March 14 charges were tried first. Following a mistrial and re-trial, a jury convicted McNeil of all charges in March 2003. The remaining five January 27 charges were separately tried to a jury in October 2003, which resulted in another conviction of all counts. After merger, the trial court imposed an aggregate term of eighteen years imprisonment, with a nine-year parole disqualifier.

We affirmed the conviction and sentence for the March 14 charges. State v. McNeil, No. A-2225-03 (App. Div. May 16, 2006). However, in a separate opinion, we reversed the judgment of conviction with respect to the January 27 charges because evidence of McNeil's March 14 conduct, and the introduction of contraband seized in connection with the latter arrest, was unduly prejudicial, and violated N.J.R.E.404(b). State v. McNeil, No. A-6502-03 (App. Div. May 16, 2006). The Supreme Court denied certification. State v. McNeil, 188 N.J.491 (2006).

On June 4, 2007, McNeil entered a guilty plea to one count with respect to the January 27 charges, and the State agreed to dismiss the remaining charges. The Law Division sentenced McNeil to a concurrent term of ten years imprisonment with a five-year period of parole disqualification.

Prior to the guilty plea, McNeil filed a pro se petition for PCR on January 17, 2007. The primary focus of the petition was on the conduct of McNeil's trial counsel who was accused of deficient performance insofar as failing to properly investigate and prepare the case for trial. McNeil's claim of ineffective assistance of counsel, in part, revolved around the contentions that trial counsel committed fatal blunders when he failed to call potential witnesses Beverly Minnie and Kelly Logan.1 Additionally, McNeil asserted that defense counsel was ill prepared for the testimony elicited from Vanessa DeMoss, who did testify for the defense, but whose credibility was irretrievably impaired by the State's cross-examination.

After the appointment of counsel and supplementation of arguments, the Law Division conducted a non-evidentiary hearing on September 12, 2008. On October 2, 2008, the PCR judge issued a four-page opinion and order denying relief. This appeal followed.2

On appeal, McNeil presents the following issues for our consideration:

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 CONTENTIONS THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

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

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO ADVISE THE DEFENDANT NOT TO PRESENT THE TESTIMONY OF A DEFENSE WITNESS, VANESSA DEMOSS, WHOSE CREDIBILITY WAS SO ADVERSELY IMPACTED THAT IT EFFECTIVELY DESTROYED THE BELIEVABILITY OF THE DEFENDANT'S TESTIMONY AND, AS A RESULT, ANY POSSIBILITY OF A SUCCESSFUL DEFENSE.

We are unpersuaded.

II.

The standard for determining whether trial counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).3 To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the Strickland framework.

Under Strickland's first prong, a defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish the first prong, "a defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the "counsel" guaranteed' by the Sixth Amendment." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted).

Under the second prong, a defendant must demonstrate "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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "The defendant must show that the deficient performance prejudiced the defense." State v. Taccetta, 200 N.J. 183, 193 (2009) (citation omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

An applicant for post-conviction relief must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). One seeking such a remedy must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the applicant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, "bald assertions" of ineffective assistance are not enough. Ibid.

After reviewing the trial and PCR record, paying close attention to the trial testimony McNeil provided with respect to the events of March 14, 2000, we fail to discern how failing to use Kelly and Minnie as witnesses or calling DeMoss to testify were either defective or outcome-determinative decisions. First, the record is wholly barren of any evidence to support the utilization of Kelly or Minnie as defense witnesses, absent rank speculation about what they had to offer. More significant, defense counsel's use of DeMoss was preceded by defense counsels' interview of DeMoss on the evening before she testified, which strongly suggested that her version of events would corroborate McNeil's claim of innocence. Defense counsel was further aware of the State's promise to cross-examine DeMoss with respect to false information she had given to law enforcement with respect to a bogus alibi defense proffered by McNeil in an unrelated case.

We discern nothing unreasonable about defense counsel's decision to utilize DeMoss, even in the face of potentially credibility-impairing cross-examination. The fact that the jury convicted McNeil is not the sole barometer to measure counsel's conduct. Ineffective assistance of counsel is not proven by showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. State v. DiFrisco, 174 N.J.195, 220 (2002). Trial counsel's strategic decision demands our deference. State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002).

Here, the jury found McNeil guilty because the evidence was overwhelming. His PCR claims do not undermine our confidence in the outcome of the trial. Accordingly, the Law Division's conclusions that McNeil "failed to present a prima facie claim" and that PCR was unavailable were correct.

1 McNeil has never provided details concerning the nature of these witnesses' knowledge or information. At most, Minnie might have been a character witness, and Kelly, perhaps, would have testified to support McNeill's contention that he did not have drugs on his person at the time of the arrest. Furthermore, McNeill "believed that there was a report by Officer Kelly which was not supplied to the defense in discovery." No evidence of a Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), violation was ever presented.

2 The notice of appeal was not filed until May 16, 2012. On July 9, 2012, we granted McNeil's motion to file the tardy notice of appeal as within time.

3 The Strickland/Fritz model remains in full force and effect. See Burt v. Titlow, ___ U.S. ___, ___, 134 S. Ct. 10, 13, 187 L. Ed. 2d 348, 351 (2013); State v. Miller, 216 N.J. 40, 57 (2013).