STATE OF NEW JERSEY v. SCOTT BENNETT

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4549-14T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SCOTT BENNETT,

     Defendant-Appellant.
______________________________

              Argued December 4, 2017 – Decided December 19, 2017

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              08-06-1477.

              Andrew P. Slowinski, Designated Counsel,
              argued the cause for appellant (Joseph E.
              Krakora, Public Defender, attorney; Andrew P.
              Slowinski, on the briefs).

              Mary R. Juliano, Assistant Prosecutor, argued
              the cause for respondent (Christopher J.
              Gramiccioni,   Monmouth   County  Prosecutor,
              attorney; Mary R. Juliano, of counsel and on
              the brief; Randolph Mershon, III, Legal
              Assistant, on the brief).

PER CURIAM
     After a 2010 jury trial, defendant Scott Bennett was convicted

of: first-degree aggravated manslaughter of one victim by an act

of vehicular homicide; second-degree aggravated assault of another

victim by recklessly causing serious bodily injury to her under

circumstances manifesting extreme indifference to the value of

human life; second-degree leaving the scene of a motor vehicle

accident; and various other offenses.    The trial court sentenced

defendant to an aggregate custodial sentence of forty-four years,

subject to a twenty-eight-year parole disqualifier under the No

Early Release Act, 
N.J.S.A. 2C:43-7.2.    Defendant unsuccessfully

challenged his convictions and sentence on multiple grounds on

direct appeal.   State v. Bennett, No. A-5727-09 (App. Div. Dec.

5, 2011), and the Supreme Court thereafter denied certification.


214 N.J. 115 (2013).

     Defendant now appeals the trial court's denial of his petition

for post-conviction relief ("PCR") without an evidentiary hearing.

His main contention is that his trial counsel was ineffective in

failing to assure that defendant personally watched the entire

police video of the fatal accident the State provided in discovery.

Defendant contends that if he had seen the graphic full video

before trial, he would have accepted the State's plea offer, which

had recommended a twenty-year aggregate custodial term. We affirm.



                                2                           A-4549-14T1
      We incorporate by reference the factual narrative detailed

in this court's unpublished December 2011 opinion.                 Bennett, slip

op. at 7 to 14.      In essence, the State's proofs showed that, on

October 7, 2007, defendant, while intoxicated and with a suspended

license, was spotted by a police officer speeding and weaving on

local roads in Manalapan.         The officer started to pursue him, and

the chase was filmed on the squad car's Mobile Video Recording

("MVR") system.      Defendant drove through a stop sign and collided

with a motorcycle at an intersection, causing the motorcyclist and

his passenger to be thrown to the pavement.                Fleeing the scene,

defendant    drove   over   the      motorcycle    operator.       Some   of   the

operator's human remains were left on defendant's car.                Defendant

was apprehended later that evening at his home.                The police found

a blanket on his car window, which had been placed there in an

apparent attempt to cover up the victim's remains.

      During   the   course     of    discovery,    the    State    provided     to

defendant's trial counsel a copy of the MVR.                The MVR shows the

officer's pursuit of defendant's car, defendant driving through

the   stop   sign    at   the   intersection       and    colliding    with    the

motorcycle, and the operator and the motorcycle passenger being

thrown onto the pavement.         The MVR further depicts defendant's car

turn around and flee the scene, running over the motorcyclist's



                                        3                                 A-4549-14T1
head and torso.1       The MVR, or at least a portion of it, was

initially played in the courtroom, with defendant and his counsel

present, at a bail revocation hearing before trial.               The MVR was

played on a second occasion in the courtroom before trial, also

in the presence of defendant and his counsel, at a suppression

hearing.2

     At the plea cut-off hearing, defendant acknowledged on the

record   that   he   had   seen   the   police   reports    and   "all"   other

discovery supplied by the State.             His attorney stated he had

"extensively" reviewed the discovery.             In addition, defendant

specifically acknowledged to the court that he had been given a

chance to review with his attorney "all the discovery," including

"videotapes," that he was satisfied that he had seen "everything,"

that he had spoken to his attorney about "everything," and that

he was "satisfied" with his counsel's advice.              Defendant insisted

on going to trial, despite being told on the record by the judge

that if he was convicted of all charges, he faced a sentence of

up to life in prison. Defendant indicated that he was "absolutely"

satisfied with his trial counsel.           Counsel advised the court that



1
  On the audio portion of the MVR, the officer exclaims, "Oh my
God," or words to that effect.
2
  As part of our review of the overall appellate record, we have
watched the MVR, as urged by counsel.

                                        4                             A-4549-14T1
defendant was adamant about rejecting the State's twenty-year plea

offer and going to trial.

     In his certification in support of his present PCR petition,

defendant contends that his trial counsel was ineffective because

he did not make sure that defendant personally observed the entire

MVR before rejecting the State's plea offer.        Defendant contends

that the portion of the MVR depicting the accident itself was not

played at the bail revocation hearing.       Further, he contends that,

at the subsequent suppression hearing where the entire MVR was

played, he was seated in the rear of the courtroom because his

attorney needed room at counsel table to spread out papers, and

was therefore unable to see the images presented on the screen

facing a witness.    Defendant submitted a separate certification

from his mother in support of his contentions that he had not seen

the full MVR until it was played for the jury.        He insists that,

had he seen the full MVR, he would have realized the true strength

of the State's case and would have accepted the plea offer.

     The   record   further   contains   a   handwritten   letter   that

defendant wrote to his trial attorney after his conviction, urging

the attorney to represent him on the direct appeal.        Among other

things, defendant recognized in his letter that, although he had

not seen the entire MVR before it was played at trial, he had been

"hell bent" on rejecting the plea offer, that therefore "it doesn't

                                   5                            A-4549-14T1
matter" that he had not seen the full MVR in advance.               He added

that   "[y]ou'll   never   hear   me   say   you   didn't   do   your    best!"

Defendant added that he was "certain that we can beat the eluding

[charge] with another trial."

       The PCR judge, Hon. John R. Tassini, carefully considered

defendant's claims of ineffectiveness in light of the record and

the applicable case law.          Having done so, the judge rejected

defendant's PCR petition, without an evidentiary hearing, in a

comprehensive, fourteen-page written statement of reasons.                Judge

Tassini concluded that defendant failed to present a prima facie

case of ineffective assistance of counsel under each of the two

prongs of Strickland v. Washington, 
466 U.S. 668, 694 (1984)

(requiring proof of counsel's deficient performance and resulting

prejudice to defendant); see also State v. Fritz, 
105 N.J. 42, 58

(1987) (adopting the Strickland test in our State).

       On his present appeal, defendant raises the following points

for our consideration:

            POINT ONE

            THE PCR COURT SHOULD BE REVERSED AS DEFENDANT
            RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
            DURING PLEA NEGOTIATIONS IN VIOLATION OF HIS
            RIGHTS UNDER THE SIXTH AMENDMENT OF THE U.S.
            CONSTITUTION AND ARTICLE 10, PARAGRAPH 11 OF
            THE NEW JERSEY CONSTITUTION.




                                       6                                A-4549-14T1
          POINT TWO

          THE PCR COURT ERRED BY DENYING DEFENDANT'S
          REQUEST FOR AN EVIDENTIARY HEARING ON HIS
          PETITION FOR POST-CONVICTION RELIEF.

          POINT THREE

          DEFENDANT'S PCR COUNSEL PROVIDED INEFFECTIVE
          ASSISTANCE IN PROCEEDINGS BEFORE THE LAW
          DIVISION (NOT RAISED BELOW).

          POINT FOUR

          DEFENDANT'S PCR PETITION SHOULD BE GRANTED FOR
          THE REASONS SET FORTH IN DEFENDANT'S PRO SE
          BRIEF IN SUPPORT OF HIS PETITION.

          REPLY POINT ONE

          THIS MATTER SHOULD BE REMANDED TO THE LAW
          DIVISION FOR AN EVIDENTIARY HEARING ON
          DEFENDANT'S PETITION FOR PCR.

          REPLY POINT TWO

          DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE
          OF COUNSEL IN PROCEEDINGS BEFORE THE PCR
          COURT.

Having considered these arguments, we affirm the rejection of

defendant's PCR petition, substantially for the thoughtful reasons

set forth by Judge Tassini in his written opinion.   We agree with

the judge that defendant failed to establish under the Strickland

standards either deficient performance by his former attorney or

actual prejudice.

     Even if one were to accept as true defendant's claim that he

did not see the full MVR before trial, that alone would not itself

                                7                          A-4549-14T1
require his conviction to be set aside.           Notably, defendant's

certification does not assert that his trial attorney never advised

him of the likely jury impact of what was shown on the MVR, or

that defendant – who drove the vehicle at the scene – lacked

knowledge of the actual events that occurred.         To the contrary,

defendant acknowledged at the plea cut-off hearing that he had

discussed "everything" turned over by the State with his counsel.

     Defendant's claim that he had not personally seen the full

MVR, even if accepted as true, does not mean his attorney never

discussed its contents with him.        Nor was it vital for defendant

to have seen the MVR himself, or, for that matter, the other items

of discovery, in order for trial counsel to have provided him with

sound legal advice about his options and the risks of trial.

     Moreover, we agree with the PCR judge that it is abundantly

clear that defendant – as he expressed it in his own words in his

letter – was "hell bent" on going to trial, and that he would have

not been persuaded to accept the plea offer, regardless of what

the State's discovery contained.       Under these circumstances, there

was no reason for the PCR judge here to conduct an evidentiary

hearing, even viewing the record, as we must, in a light most

favorable to defendant.   State v. Jones, 
219 N.J. 298, 311 (2014);

State v. Preciose, 
129 N.J. 451, 462-63 (1992).



                                   8                            A-4549-14T1
    The remaining arguments raised by defendant lack sufficient

merit to warrant discussion.   R. 2:11-3(e)(2).

    Affirmed.




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