STATE OF NEW JERSEY v. JEROME WRIGHT

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0424-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JEROME WRIGHT, a/k/a JAHID
RICHARDSON, JEROME A. TOWNS,
PETEY, E'KIM MOORE, ANTHONY KING,
ERIC LASURE and DAMON TUCKER,

     Defendant-Appellant.
____________________________________

              Submitted October 23, 2017 – Decided November 20, 2017

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              12-04-0309.

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

              Camelia M. Valdes, Passaic County
              Prosecutor, attorney for respondent
              (Christopher W. Hsieh, Chief Assistant
              Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Jerome Wright appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary

hearing.    For the reasons that follow, we affirm.

       In 2013, defendant pled guilty to first-degree aggravated

manslaughter, 
N.J.S.A. 2C:11-4(a), and two counts of first-

degree robbery, 
N.J.S.A. 2C:15-1(a)(1).     He was sentenced to a

thirty-nine year term of imprisonment in the aggregate, subject

to the No Early Release Act, 
N.J.S.A. 2C:43-7.2, and the Graves

Act, 
N.J.S.A. 2C:43-6(c).     Defendant filed a direct appeal,

arguing only that his sentence was excessive.    We affirmed his

sentence.     See State v. Wright, No. A-5627-12 (App. Div. Nov.

20, 2013).

       The facts underlying defendant's convictions are as

follows.    Defendant approached a woman on the street in

Paterson, pointed a gun to her back, and instructed her to get

down and turn over what she had in her possession.     The victim

complied, giving defendant her wallet and car keys.      Minutes

later, defendant approached a couple, took out his gun, and told

them to get down and turn over what they had in their

possession.    The woman gave defendant her purse.    The man, an

off-duty police officer, reached for his gun but defendant shot

him.   The victim subsequently died from his wounds.     Upon his


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apprehension, defendant confessed to committing the robberies

and firing the gun that killed the male victim.

    In 2015, defendant filed a PCR petition.     As for those

contentions relevant to the issues on appeal, defendant claimed

plea counsel failed to find witnesses that could have provided

exculpatory testimony.   After he was assigned counsel, defendant

submitted a certification stating he had advised plea counsel

there was an individual who "would have provided an alibi."

Defendant did not elaborate upon how such individual could have

aided him in his defense.

    PCR counsel submitted a certification stating defendant

gave him the name of an alleged alibi witness.     Counsel

contacted the witness, who informed counsel she had "alibi

information."   She mentioned she had not been contacted when the

underlying case was still pending.    The witness advised counsel

she would meet him in his office to disclose the information she

possessed, but she never showed up.   Counsel reached out to the

witness but she never responded to his requests to contact him.

    While the matter was pending before the PCR court,

defendant never produced a certification or affidavit from the

witness setting forth the exonerating information she possessed.

On July 25, 2016, the PCR court entered an order denying

defendant's petition for post-conviction relief.
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    On appeal, defendant presents the following argument for

our consideration.

         POINT I – DEFENDANT WAS DENIED THE EFFECTIVE
         ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-
         CONVICTION RELIEF.

              A.   Counsel Was Ineffective For
              Failing To Conduct A Minimally Adequate
              Pretrial Investigation Resulting In The
              Failure To Call An Alibi Witness To
              Assist In His Defense.

    The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment to the

United States Constitution was formulated in Strickland v.

Washington, 
466 U.S. 668, l
04 S. Ct. 2052, 
80 L. Ed. 2d 674

(1984), and adopted by our Supreme Court in State v. Fritz, l
05 N.J. 42 (l987).   In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet a two-prong test.

The first prong requires defendant to prove counsel's

performance was deficient and he or she made errors so egregious

that counsel was not functioning effectively as guaranteed by

the Sixth Amendment.   Strickland, supra, 
466 U.S.  at 687, 694,

l
04 S. Ct.  at 2064, 2068, 
80 L. Ed. 2d    at 693, 698.

    The second prong requires defendant to prove the defect in

performance prejudiced defendant's rights to a fair trial and

there exists a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have
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been different."   Ibid.   If a defendant has pled guilty, the

second prong requires defendant to show "'there is a reasonable

probability that, but for counsel's errors, [the defendant]

would not have pled guilty but would have insisted on going to

trial.'"   State v. Nuñez-Valdéz, 
200 N.J. 129, 139 (2009)

(quoting State v. DiFrisco, 
137 N.J. 434, 457 (1994)).

    We conclude our decision in State v. Cummings, 
321 N.J.

Super. 154, 170-71 (App. Div.), certif. denied, 
162 N.J. 199

(1999) is dispositive of defendant's argument.    In Cummings, we

rejected the defendant's claim his counsel had been ineffective

for failing to pursue an alibi defense, because the defendant's

allegation was unsupported by any corroborating affidavits or

certifications from any witness attesting to the alibi.

    Here, for the same reason, we reject defendant's claim.

Defendant has not even identified what the alibi defense is, let

alone submitted the appropriate verification of its existence.

Defendant's bald assertion there is an alibi is insufficient.

Accordingly, he failed to make a prima facie showing of

ineffectiveness of trial counsel sufficient to satisfy the

Strickland-Fritz standard.

    Affirmed.




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