STATE OF NEW JERSEY v. GARY SAYERS
Annotate this CaseNOT 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-0629-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY SAYERS,
Defendant-Appellant.
___________________________________________
Submitted December 12, 2017 – Decided January 25, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
06-08-1865.
Joseph E. Krakora, Public Defender, attorney
for appellant (David A. Gies, Designated
Counsel, on the briefs).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Melinda A. Harrigan,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Gary Sayers appeals from an order entered by the
Law Division on May 19, 2016, which denied his petition for post-
conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
In August 2006, a grand jury in Atlantic County returned
Indictment No. 06-08-1865 charging defendant, Derrick Johnson, and
Steven L. McGuire with various offenses. McGuire entered into a
plea agreement with the State. Defendant and Johnson were tried
before a jury.
At the trial, evidence was presented which established that
on June 22, 2006, at approximately 11:00 p.m., the TGI Fridays in
Somers Point closed for the evening, but five employees remained
in the restaurant: the kitchen manager, assistant kitchen manager,
bartender, a cook, and the dishwasher. About twenty minutes later,
the cook went outside to discard some trash, and he was confronted
by defendant, who pointed a gun at him. McGuire and Johnson were
also present.
Defendant and Johnson were wearing regular ski masks, while
McGuire was wearing a stocking as a mask. Defendant had a silver
revolver, and Johnson had a black revolver. McGuire was carrying
a BB gun, which looked like a black revolver.
Defendant ordered the cook to tell him how many persons were
inside and where they were located. At gunpoint, the cook was
2 A-0629-16T1
taken inside and directed to a dry goods storage area. On the way,
they came upon the assistant kitchen manager and the dishwasher,
who were also taken to the storage area. Defendant asked the
assistant kitchen manager where the safe was located, and she
directed him to the bar area.
The intruders made their way to the bar area, where they
found the kitchen manager and bartender. Johnson ordered the
bartender to go to the storage area, and told him to bind the
other employees' hands with duct tape. Defendant emptied the cash
drawer at the bar, taking about $900. Defendant then ordered the
kitchen manager to take him to the safe, and told him to open it.
When the kitchen manager said he was not able to do so,
defendant jabbed him in the head with the pistol and told him to
open the safe. However, the kitchen manager could not access the
bottom portion of the safe, and he was sent back to the storage
area. McGuire and Johnson took money and cell phones from several
workers.
At gunpoint, the employees were forced into the beer cooler.
They heard the padlock being placed on the door, but the lock was
faulty and one of the employees was able to open the door. The
employee noticed that the intruders had departed and he called the
police.
3 A-0629-16T1
The following day, McGuire met his girlfriend and asked her
to meet him in a motel in Atlantic City. McGuire was in possession
of about $1200 in cash. McGuire told his girlfriend he obtained
the money in a robbery which he, defendant, and Johnson committed
at TGI Fridays. McGuire instructed his girlfriend not to tell
anyone where he got the money.
McGuire's girlfriend nevertheless reported the robbery to the
police, and an officer of the Somers Point Police Department (SPPD)
asked her if she knew where he could locate McGuire. She told the
officer she did not know where he was, but she would contact him
and try to convince him to turn himself in to the police. She
contacted McGuire, who called defendant and relayed what his
girlfriend told him.
Defendant decided that he, Johnson, and McGuire should leave
the area so they traveled to New Hampshire. McGuire informed
defendant that he wanted to turn himself in to the police.
Defendant and Johnson told him not to do so. McGuire testified he
was afraid that defendant and Johnson would kill him.
Eventually, McGuire's girlfriend persuaded McGuire to turn
himself in to the police and he was arrested in Atlantic City on
July 7, 2006. Detective Robert Somers of the SPPD interviewed
McGuire, who identified defendant and Johnson as the other persons
who committed the robberies. Based on that information, Somers
4 A-0629-16T1
obtained arrest warrants for defendant and Johnson. They were
arrested in Atlantic City.
Defendant signed a consent-to-search form, which authorized
a search of his car. In the car, the police found a white bag
containing McGuire's identification and a folding knife. A black
hoodie, two woolen masks, and nine gloves also were found in the
car. Tests showed that Johnson's DNA was inside one of the gloves,
and defendant's DNA was on the inside and outside of one of the
masks and on the collar of the hoodie.
Defendant's former girlfriend testified that she had been
living periodically with defendant in New Hampshire. She said
defendant owned a silver revolver that matched the description of
the gun used by one of the robbers. She also stated that shortly
before the robberies, she and defendant broke off their
relationship.
She said defendant left to return to New Jersey and took the
gun with him. She also said she overheard a telephone conversation
between defendant and Johnson before defendant left. During that
call, defendant told Johnson he had a gun. Defendant said they
were "going to roll" once he returned to Atlantic City.
The jury found defendant guilty of: first-degree conspiracy
to commit robbery,
N.J.S.A. 2C:5-2 (count one); five counts of
first-degree robbery,
N.J.S.A. 2C:15-1 (counts two, three, four,
5 A-0629-16T1
five, six); second-degree burglary,
N.J.S.A. 2C:18-2 (count
seven); five counts of third-degree criminal restraint,
N.J.S.A.
2C:13-2 (counts nine, ten, eleven, twelve, thirteen); five counts
of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:
12-1(b)(4) (counts fourteen, fifteen, sixteen, seventeen,
eighteen); three counts of second-degree possession of a weapon
for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (counts nineteen,
twenty, twenty-one); three counts of third-degree possession of a
handgun without a permit,
N.J.S.A. 2C:39-5(b) (counts twenty-two,
twenty-three, twenty-four); and second-degree certain persons not
to possess weapons,
N.J.S.A. 2C:39-7 (count thirty-seven).
The trial judge granted the State's motion for imposition of
an extended term and sentenced defendant on count two (first-
degree robbery) to fifty years of incarceration, with an eighty-
five percent period of parole ineligibility, pursuant to the No
Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The court imposed a
consecutive ten-year term, subject to NERA, on count seven (second-
degree burglary); and a consecutive ten-year term on count thirty-
seven (certain persons not to possess weapons) with a five-year
period of parole ineligibility. The court also imposed concurrent
sentences on the other counts.
6 A-0629-16T1
II.
Defendant appealed from the judgment of conviction dated
November 12, 2008. We affirmed defendant's convictions except for
the conviction on count one (conspiracy), and remanded the matter
for entry of an amended judgment of conviction. State v. Sayers,
No. A-2074-08 (App. Div. Aug. 24, 2010) (slip op. at 19). The
Supreme Court thereafter denied defendant's petition for
certification. State v. Sayers,
205 N.J. 81 (2011).
On May 13, 2011, defendant filed a pro se PCR petition, in
which he alleged he was denied the effective assistance of trial
counsel. He also claimed that the assistant prosecutor had
improperly withheld a videotaped statement of the State's chief
witness, which defendant alleged contained exculpatory evidence.
The trial court appointed PCR counsel who filed a brief in support
of the petition.
In oral argument before the PCR court, defendant asserted
that trial counsel's performance was deficient because counsel:
(1) had little or no contact with him before trial; (2) did not
convey the State's plea offer until the day of trial; (3) did not
provide him with discovery; and (4) did not undertake an adequate
pretrial investigation or call additional witnesses. In addition,
defendant alleged the State had withheld evidence material to his
7 A-0629-16T1
defense. The PCR court rejected these claims and entered an order
dated October 10, 2012, denying PCR.
Defendant appealed. We determined that the record supported
the PCR court's finding that defendant was provided with the
State's plea offer six months before the trial, but the record was
not sufficient to resolve defendant's claim that his attorney
failed to provide him with discovery, and failed to adequately
investigate the case and call additional witnesses. State v.
Sayers, No. A-2379-12 (App. Div. July 15, 2014) (slip op. at 11-
13). We remanded the matter to the PCR court for an evidentiary
hearing on these claims, and directed the court to reconsider
defendant's contention that the State had not provided defendant
with evidence material to the defense. Id. at 14. We also directed
the PCR court to consider defendant's claim that his arrest was
illegal and his claim that the complaint was not signed under oath
or in the presence of a deputy clerk or other authorized person.
Id. at 15.
III.
The PCR court conducted the evidentiary hearing on March 17,
2016. On May 19, 2016, the court filed a written opinion setting
forth its findings of fact and conclusions of law. The court
determined that defendant had not been denied the effective
assistance of trial counsel.
8 A-0629-16T1
The court found that defendant's claim that his attorney did
not provide him with discovery was refuted by the testimony and
evidence presented at the hearing, and the record did not support
defendant's claim that his attorney did not adequately investigate
the case. The court also found that defendant had not shown that
the result of the proceeding would have been different if counsel
had handled the matter differently.
In addition, the court rejected defendant's claim that his
arrest was illegal because the arresting officer did not have a
warrant, and his claim that the complaint had not been signed
under oath in the presence of a deputy clerk or other authorized
person. The court entered an order dated May 19, 2016, denying
PCR. This appeal followed.
On appeal, in his counseled brief, defendant argues:
POINT ONE:
THE PCR COURT ERRED WHERE, WITHOUT CONDUCTING
AN EVIDENTIARY HEARING REGARDING THE ISSUE,
IT DETERMINED THE DEFENDANT DID NOT PRESENT A
PRIMA FACIE SHOWING THAT THE WARRANT FOR HIS
ARREST WAS NOT ISSUED AT THE TIME HE WAS TAKEN
INTO CUSTODY.
POINT TWO:
THE PCR COURT ERRED WHERE IT DID NOT ALLOW THE
DEFENDANT TO QUESTION ON REMAND HIS RIGHT TO
EFFECTIVE LEGAL ASSISTANCE REGARDING THE
ADVICE HE RECEIVED AS TO WHETHER HE SHOULD
HAVE ACCECPTED THE STATE'S PLEA OFFER.
9 A-0629-16T1
POINT THREE:
THE DEFENDANT INCORPORATES IN SUMMARY FASHION
THE ARGUMENTS BELOW.
In addition, defendant has filed a supplement pro se brief,
in which he argues: (1) trial, appellate, and PCR counsel were
ineffective because they did not argue that the consent-to-search
form signed by defendant was invalid; (2) trial, appellate, and
PCR counsel were ineffective because they failed to argue and
challenge the lack of an affidavit in support of probable cause
for the issuance of the arrest warrant; and (3) defendant did not
receive adequate legal representation from trial counsel because
he failed to inform defendant that he could have accepted a
conditional plea offer and reserved the right to appeal the denial
of certain pretrial motions.
IV.
As noted, in his counseled brief, defendant argues that the
PCR court erred by deciding that he did not present a prima facie
case for relief on his claim that he was arrested before the arrest
warrant was issued. He also argues that the warrant was technically
deficient. Defendant contends the PCR court should have conducted
an evidentiary hearing on these issues.
An evidentiary hearing on a PCR petition is warranted only
when the defendant establishes a prima facie case in support of
PCR, the court determines that there are genuine issues of material
10 A-0629-16T1
fact that cannot be resolved by reference to the existing record,
and an evidentiary hearing is required to resolve the claims. R.
3:22-10(b). Furthermore, "[t]o establish a prima facie case,
defendant must demonstrate a reasonable likelihood that his or her
claim, viewing the facts alleged in the light most favorable to
the defendant, will ultimately succeed on the merits." Ibid.
On appeal, defendant notes that his arrest warrant has been
identified as W-2006-0382, but he asserts that the surrender report
of the Atlantic City Police Department (ACPD) does not indicate
that the officers relied upon that warrant when he was arrested.
The record includes pages ten, eleven, and twelve of the report.
On page ten, the report states that defendant and Johnson
were arrested by officers of the ACPD. Pages ten and eleven of the
report describe Johnson's arrest, and indicate that he was taken
into custody at a location on North Maryland Avenue in Atlantic
City. Page eleven of the report states that both suspects were
taken into custody without incident and turned over to the Somers
Point police for processing. Page eleven refers to warrant W-2006-
0378, the warrant issued for Johnson's arrest.
Page twelve of the report describes defendant's arrest and
indicates that defendant was arrested at a location on North
Magellan Avenue in Atlantic City before Johnson was arrested.
Warrant W-2006-0382, the warrant for defendant's arrest, is not
11 A-0629-16T1
cited on this page. However, the record includes warrant W-2006-
0382, which is dated and signed as of July 7, 2006. Defendant has
conceded he was arrested that day.
Therefore, the record establishes that a warrant for
defendant's arrest was issued the day he was taken into custody.
Furthermore, there is nothing in the record which supports the
claim that the ACPD officers arrested defendant without first
obtaining the warrant.
On appeal, defendant also asserts that the SPPD investigation
report dated July 9, 2006, which was prepared by Somers, "appears
to indicate" that defendant was arrested before the municipal
court judge was contacted. As noted, the ACPD surrender report
notes that defendant and Johnson were arrested and turned over to
the Somers Point police.
The record includes page three of Somers's three-page report.
In that part of the report, Somers stated that he attempted to
interview defendant but defendant asked to speak with an attorney
and refused to sign the form waiving his Miranda rights.1 Somers
wrote that he contacted the municipal court judge and warrants for
robbery and weapons offenses were issued. He notes that additional
charges "are forth coming."
1
Miranda v. Arizona,
384 U.S. 436 (1966).
12 A-0629-16T1
The SPPD report does not, however, support defendant's
contention that Somers did not obtain the arrest warrant until
after defendant's arrest. Somers merely commented that the
municipal court judge had been contacted and warrants issued, but
he does not say when. As stated previously, the warrant issued for
defendant's arrest is dated July 7, 2006, the date when defendant
was arrested. The record does not support defendant's claim that
Somers did not obtain the arrest warrant until after the arrest.
Defendant further claims that the arrest warrant was
technically deficient. He asserts that it is unclear from the
warrant whether a probable cause determination was made. He also
asserts that at trial, Somers testified that he issued the arrest
warrants for defendant and Johnson. Somers stated that he
"ultimately became lead investigator" in the case. Defendant
contends that viewed in a light most favorable to him, Somers'
trial testimony established that he was not a neutral and detached
officer and he issued the arrest warrant in violation of Rule 3:3-
1.
Here, the PCR judge found that the warrant was issued in
compliance with Rule 3:3-1. The rule was amended in August 2016,
and the amendments took effect on January 1, 2017. See Pressler &
Verniero, Current N.J. Court Rules, R. 3:3-1 (2017). However, the
13 A-0629-16T1
version of the rule in effect when the warrant was issued stated
in part:
(a) Issuance of a Warrant. An arrest warrant
may be issued on a complaint only if (1) a
judge, clerk, deputy clerk, municipal court
administrator or deputy municipal court
administrator finds from the complaint or an
accompanying affidavit or deposition, that
there is probable cause to believe that an
offense was committed and that the defendant
committed it and notes that finding on the
warrant; and (2) a judge, clerk, deputy clerk,
municipal court administrator, or deputy
municipal court administrator finds that
subsection (c) of this rule allows a warrant
rather than a summons to be issued.
. . . .
(c) Determination of Whether to Issue a
Summons or Warrant. A summons rather than an
arrest warrant shall be issued unless: (1) the
defendant is charged with murder, kidnapping,
aggravated manslaughter, manslaughter,
robbery, . . . any crime involving the
possession or use of a firearm, or
conspiracies or attempts to commit such crimes
. . . (3) there is reason to believe that the
defendant is dangerous to self, other persons,
or property . . . .
[Ibid.]
In her decision, the PCR judge noted that the complaint was
signed under oath on July 7, 2006. The warrant also indicates that
probable cause was found, and that the warrant was signed by the
court administrator and issued by the municipal court judge.
14 A-0629-16T1
The judge also noted that at trial, Somers had testified that
he issued warrants for defendant and Johnson, but the judge found
that this was a misstatement. The judge wrote:
The warrant clearly indicates that Detective
Somers did not issue the warrant as
[d]efendant contends. The signature of the
[c]ourt [a]dministrator is present on the line
in the warrant where it states, "signature and
Title of Judicial Officer Issuing Warrant."
Directly beneath the signature, the warrant
states, "To any peace officer or other
authorized person: pursuant to this warrant
you are hereby commanded to arrest the named
defendant and bring that person forthwith
before the court to answer the complaint." The
signature following this statement is that of
[the municipal court judge]. Thus, it cannot
be argued that Detective Somers issued the
warrant in question.
We are convinced there is sufficient credible evidence in the
record to support the judge's findings of fact. Notwithstanding
Somers's misstatement in his trial testimony, the record shows
that the warrant was, in fact, issued by the municipal court judge
in compliance with Rule 3:3-1. We therefore conclude that defendant
failed to present a prima facie case for relief on his claims
regarding the arrest warrant, and an evidentiary hearing was not
required on those claims.
V.
In his counseled brief, defendant also argues that the PCR
court erred by refusing to allow PCR counsel to question
15 A-0629-16T1
defendant's trial attorney about his communications with defendant
regarding the consequences of rejecting the State's plea offer.
At the hearing, the State objected to this line of questioning on
the ground that this court had previously decided the issue. The
PCR court sustained the objection.
On appeal, defendant argues that in the earlier appeal from
the order dated October 10, 2012, denying PCR, he raised a claim
that he had been denied the effective assistance of counsel because
his attorney had not provided him with the State's plea offer
until the day before the trial. In our opinion, we determined that
the claim was not supported by the record because defendant signed
a pretrial memo on March 18, 2008, about six months before the
trial, and the memo set forth the terms of the State's plea offer.
Sayers, No. A-2379-12 (slip op. at 11).
Defendant asserts that he is now raising a different claim.
In a certification dated September 25, 2015, which was filed with
the PCR court following our remand, defendant asserted that his
trial attorney was deficient because he failed to discuss with him
the strengths and weaknesses of the State's case before he formally
rejected the plea offer. Defendant claims that if his attorney had
properly advised him concerning the plea offer, he would have
accepted it.
16 A-0629-16T1
We are convinced, however, that the PCR judge did not err by
precluding PCR counsel from questioning defendant's trial attorney
about the advice he provided to defendant regarding the State's
plea offer. This particular claim was not raised in the PCR
petition filed in May 2011, or in the arguments presented to the
PCR court on that petition. Moreover, defendant did not raise this
issue in his appeal from the court's October 10, 2012 order,
denying PCR. In addition, our remand was limited to specific issues
and did not include this particular claim.
Here, the PCR judge correctly found that defendant was barred
from raising this new issue in the remand proceeding. Indeed, our
court rules provide that a defendant is barred from raising an
issue that was not raised in prior proceedings unless the defendant
shows that the issue could not reasonably have been raised earlier,
enforcement of the procedural bar would result in a fundamental
injustice, or denial of relief would be contrary to a new rule of
constitutional law, made retroactive to defendant's petition. R.
3:22-4(a)(1)-(3). Because defendant's claim does not fall within
any of these exceptions, he is barred from raising it at this
time. See State v. Reevey,
417 N.J. Super. 134, 148 (App. Div.
2010).
17 A-0629-16T1
VI.
In his counseled brief, defendant incorporates by reference
the other claims defendant presented in the PCR court. Defendant
claims he was denied the effective assistance of counsel because
his attorney did not adequately investigate the case, provide him
with discovery, or subpoena certain witnesses. He also claims the
State failed to produce McGuire's videotaped statement, which
defendant states may have contained exculpatory evidence.
Claims of ineffective assistance of counsel are considered
under the two-part test enunciated in Strickland v. Washington,
466 U.S. 668, 687 (1984), and adopted by our Supreme Court in
State v. Fritz,
105 N.J. 42, 58 (1987). The Strickland test
requires a defendant to show that the performance of his attorney
was deficient, and counsel's deficient performance prejudiced the
defense. Strickland,
466 U.S. at 687.
To satisfy the first part of the Strickland test, a defendant
must establish that his attorney "made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Ibid. The defendant must rebut
the "strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Id. at 689.
Furthermore, to satisfy the second part of the Strickland
test, the defendant must show "that counsel's errors were so
18 A-0629-16T1
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable." Id. at 687. The defendant must establish that
there is "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694.
Here, the PCR judge found that defendant's trial attorney had
provided defendant with all discovery. That finding was based on
the testimony of defendant's attorney, the testimony of the
assistant prosecutors who handled the matter, and the documentary
evidence presented at the remand hearing. The judge noted that the
discovery provided to defendant included McGuire's statement and
the statements of the other witnesses involved in the matter.
In addition, the judge found that defense counsel had
investigated every potential witness that defendant identified.
The judge noted that defendant's employer in New Hampshire "proved
to be a dead end" and counsel believed he could establish by other
means that defendant wore a particular type of mask for his work.
The judge also found that defendant's attorney elected as a
matter of sound trial strategy not to call a witness whose wife
had had an affair with defendant. The judge noted that the witness
had indicated he did not intend to help defendant in any way. The
judge added that counsel had checked on other potential witnesses,
but "none bore any fruit."
19 A-0629-16T1
The judge therefore determined that defendant failed to
establish the first prong of the Strickland test because he failed
to show that counsel's representation was deficient. The judge
added, however, for the sake of completeness, that defendant also
failed to satisfy Strickland's second prong because he had not
shown that the results of the proceeding would have been different
if counsel had handled the matter differently.
The judge wrote that there was overwhelming evidence of
defendant's guilt. That evidence included the gloves, hoodie, and
masks recovered by the police, DNA evidence, McGuire's testimony,
the testimony of McGuire's girlfriend, and the testimony of
defendant's former girlfriend.
We are convinced there is sufficient credible evidence in the
record to support the PCR judge's factual findings and conclusion
that defendant was not denied the effective assistance of trial
counsel. Defendant's arguments to the contrary lack sufficient
merit to warrant further comment. R. 2:11-3(e)(2).
VII.
As noted, defendant has filed a pro se supplemental brief.
In that brief, defendant raises entirely new claims of ineffective
assistance of trial, appellate, and PCR counsel. Because defendant
did not raise these claims in the PCR court, we decline to address
20 A-0629-16T1
them for the first time on appeal. State v. Harris,
209 N.J. 431,
445 (2012) (citing State v. Robinson,
200 N.J. 1, 20-22 (2009)).
Affirmed.
21 A-0629-16T1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
