STATE OF NEW JERSEY v. JONATHAN A. BLACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4150-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN A. BLACK,

Defendant-Appellant.

______________________________

May 19, 2016

Submitted April 27, 2016 Decided

Before Judges Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-10-1268 and 04-10-1269.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Jonathan A. Black, appeals from the December 16, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant was convicted by a jury of two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). These convictions arose from armed robberies of a Quick Chek convenience store and a 7-Eleven, which occurred thirty minutes apart. The judge imposed an aggregate twenty-eight-year term with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm substantially on the basis of Judge William A. Daniel's thorough twenty-one-page opinion.

Defendant filed a direct appeal challenging the denial of his motion to suppress and his motion for a mistrial, the jury instructions given, the State's summation and his sentence. On December 24, 2009, we affirmed defendant's convictions and sentence. State v. Black, No. A-3336-06 (App. Div. Dec. 24, 2009) (slip op. at 2, 19), certif. denied, 201 N.J. 442 (2010). Our Supreme Court subsequently denied his petition for certification. State v. Black, 201 N.J. 442 (2010).

After being alerted by the prosecutor that a juror may have been sleeping during trial, the trial judge thoroughly responded to these suspicions. With the assent of both defense counsel and the prosecutor, each juror alleged to have "nodded off" was first voir dired separately by the judge and later questioned jointly. The judge also told the jurors to alert him by raising their hand whenever they needed a break.

Defendant raises the following issues on appeal

POINT I: DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.

POINT II: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE OF COUNSELS' INEFFECTIVENESS BY NOT PURSUING THE EXCLUSION OF SLEEPING/DOZING JUROR; IN THE ALTERNATIVE, THIS MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS.

In his supplemental brief, defendant adds

POINT I: DEFENDANT IS ENTITLED TO POSTCONVICTION RELIEF BECAUSE THE COMBINED ERRORS OF TRIAL COUNSEL DENIED DEFENDANT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

A claim of ineffective assistance of counsel must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). Strickland requires a showing, "first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). The Strickland standard applies to a defendant's claims of ineffective assistance of counsel at both the trial and appellate level. State v. O'Neil, 219 N.J. 598, 611 (2014).

An evidentiary hearing is ordinarily granted if the facts, viewed "in the light most favorable to the defendant," would warrant PCR. State v. Jones, 219 N.J. 298, 311 (2014). Thus, whether a defendant receives an evidentiary hearing depends on the defendant's "establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-10(b).

A defendant "must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, a defendant "must allege [specific] facts sufficient to demonstrate counsel's alleged substandard performance." Ibid.

Defendant contends on appeal that trial counsel was ineffective in not seeking to preclude juror number six from deliberating due to her "nodding off" during trial. He also argues that appellate counsel was ineffective in not raising this issue on appeal. The issue was raised and addressed during trial, where the trial judge voir dired the jurors seen nodding off on two occasions and gave them curative instructions. When questioned, juror number six stated that she had heard all of the testimony.

Although Judge Daniel found the issues raised in defendant's petition for PCR were precluded by Rule 3:22-4(a),1 he nonetheless evaluated the merits of each claim, concluding that the trial judge properly addressed the allegation of sleeping jurors and took appropriate corrective measures pursuant to our case law. See State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986) (explaining the process when a juror is observed nodding off); State v. Reevey, 159 N.J. Super. 130, 133-34 (App. Div.) (recognizing that a trial judge has the discretion to remove a sleeping juror), certif. denied, 79 N.J. 471 (1978).

In his pro se supplemental brief, defendant additionally complains that "trial counsel should have objected to the seemingly impartiality, taint, and unfairness of the court in providing a fair trial" after the trial judge, out of the presence of the jury, commented

Okay. And also it did seem to the court this afternoon's session the only one who was nodding a little more, was number seven, still was nodding. I was too, so I can't tell. I think she was listening.

This statement by the trial judge does not indicate that he was asleep, only that the judge, assuming he was not making the statement lightheartedly, was "nodding." Defendant points to no other indication that the judge was not alert or was not in control of the proceedings at all times. Defendant also maintains that counsel was deficient in not seeking a mistrial after an unanticipated break of several days in the trial due to a government shutdown following a scheduled holiday hiatus. "A defendant is entitled to a fair trial but not a perfect one." State v. R.B., 183 N.J. 308, 334 (2005) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)). Defendant points to no resulting demonstrable prejudice flowing from this state-wide occurrence. Because none of these issues are meritorious, appellate counsel was not ineffective in choosing not to raise them on appeal. See O'Neil, supra, 219 N.J. at 612-13 (recognizing that "appellate counsel does not have an obligation 'to advocate ad infinitum'" on direct appeal).

We conclude that defendant has failed to carry his burden to establish that either trial or appellate counsel were ineffective. We, therefore, affirm the denial of defendant's PCR petition for the reasons expressed above as well as substantially for the reasons expressed by Judge Daniel in his December 16, 2013 written opinion.

Affirmed.

1

Any ground for relief not raised in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.