STATE OF NEW JERSEY v. CRAIG A. SCOTT

NOT FOR PUBLICATION WITHOUT THE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-0630-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CRAIG A. SCOTT, a/k/a ALTEREK JONES,
RICKEY JONES, RICKY SMIOTH and
RICKY SMITH,

     Defendant-Appellant.
___________________________________

              Submitted January 9, 2018 – Decided January 22, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              08-04-1209.

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

              Robert D. Laurino, Acting Essex       County
              Prosecutor, attorney for respondent (Lucille
              M. Rosano, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant appeals from an April 15, 2016 order denying his

petition for post-conviction relief (PCR).   Defendant's petition

contended his trial counsel rendered ineffective assistance by

failing to produce alibi witnesses; object to testimony from

Patrick Hall; advise defendant of the penal consequences before

rejecting a plea deal; object to playing a taped recording of

testimony from a witness; object to testimony from a detective;

and ask for a limited instruction to the jury.   Judge Michael L.

Ravin denied the petition after conducting an evidentiary hearing

as to the alibi witnesses.   We affirm.

     Defendant is serving two consecutive life prison terms for

murdering two juveniles.     We affirmed the convictions in an

unpublished opinion.   State v. Scott, No. A-2948-10 (App. Div.

Aug. 13, 2013), certif. denied, 
217 N.J. 288 (2014). On his direct

appeal, defendant had raised the following arguments:

          POINT I

          THE STATE HAVING CONCEDED THAT "THE MAJORITY
          OF" JARON WINKEY'S STATEMENT TO THE POLICE WAS
          "A FALSE STORY HE CREATED," THE TRIAL COURT
          ERRED IN ADMITTING THAT STATEMENT PURSUANT TO
          N.J.R.E. 803(a)(1) BECAUSE IT WAS UN-RELIABLE,
          SELF-SERVING, AND NOT CORROBORATED BY OTHER
          EVIDENCE IN THE CASE.

               A. INTRODUCTION

               B. LEGAL ARGUMENT



                                 2                         A-0630-16T1
         POINT II

         AFTER PATRICK HALL TESTIFIED THAT HE HAD
         VIEWED 
20 OR 30 PHOTOGRAPHS, INCLUDING ONE OF
         DEFENDANT, BEFORE SELECTING DEFENDANT'S PHOTO
         FROM AN ARRAY, THE TRIAL COURT SHOULD HAVE
         RECONSIDERED DEFENSE COUNSEL'S REQUEST FOR A
         WADE[3] HEARING. (NOT RAISED BELOW).

         POINT III

         THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR
         TRIAL BY AN IMPARTIAL JURY WHEN THE COURT
         FAILED TO MAKE ANY INQUIRY AFTER RECEIVING THE
         FOREPERSON'S NOTE SUGGESTING THAT SHE WAS TOO
         AFRAID TO READ THE VERDICT IN OPEN COURT. (NOT
         RAISED BELOW).

         POINT IV

         THE AGGREGATE OF TRIAL ERRORS DENIED DEFENDANT
         A FAIR TRIAL AND REQUIRES THAT HIS CONVICTIONS
         BE REVERSED.

         ________
         3
            United States v. Wade, 
388 U.S. 218, 
87 S. Ct. 1926, 
18 L. Ed. 2d 1149 (1967).

         [Id. at 7-8.]

On the direct appeal, defendant raised the following additional

arguments in his pro se supplemental brief:

         POINT I

         SINCE JUROR NUMBER TWO WAS UNABLE TO CONTINUE
         UNDER R. 1:8-2(d), AND THE JURORS HAD YET TO
         REACH A CRUCIAL STAGE IN THE TRIAL, THE TRIAL
         COURT ERRORE [SIC] IN FAILING TO DISCHARGE HER
         FROM FURTHER JURY SERVICE. THUS VIOLATING
         DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN
         IMPARTIAL JURY. U.S. CONST. AMENDS. VI, VIX;


                               3                          A-0630-16T1
N.J. CONST. (1947) ART. I PARS. 1, 9, AND 10.
(NOT RAISED BELOW).

POINT II

THE STATE'S PRESENTATION OF HEARSAY, TO THE
EFFECT   THAT   DEFENDANT'S   PHOTOGRAPH   WAS
INCLUDED IN THE ARRAYS SHOWN TO EYEWITNESSES
BECAUSE HE HAD BEEN IMPLICATED IN THE SHOOTING
BY A NON-TESTIF[Y]ING WITNESS, VIOLATED
DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND
HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR
TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. (1947) ART. I, PARS. 1, 9, AND 10.

POINT III

THE ADMISSION OF EXTREMELEY [SIC] DAMAGING,
BLATANTLY INADMISSIBLE HEARSAY EVIDENCE TO
BOLSTER JAROD WINKEY'S TESTIMONY VIOLATED
DEFENDANT'S RIGHT TO CONFRONTATION, THE
HEARSAY PROHIBITION OF THE EVIDENCE RULES, AND
CRAWFORD V. WASHINGTON.[4]

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION IN
RULING THAT PATRICK HALL'S PRIOR CONVICTION
FOR AGGRAVATED MANSLAUGHTER WAS INADMISSIBLE
TO IMPEACH HIS CREDIBILITY.

POINT V

THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN
IF THE INDIVIDUAL ERRORS, SET FORTH ABOVE DO
NOT CONSTITUTE REVERSIBLE ERROR, THE ERROR[S]
IN THE AGGREGATE DENIED DEFENDANT A FAIR
TRIAL. (NOT RAISED BELOW).

________
4
  
541 U.S. 36, 
124 S. Ct. 1354, 
158 L. Ed. 2d 177 (2004).



                      4                          A-0630-16T1
            [Id. at 8-9 (alterations in original).]

We concluded that defendant's contentions on the direct appeal

lacked     merit,     but   rendered       a    twenty-five   page   decision

nevertheless.       Id. at 9.

     On this appeal, defendant argues:

            POINT I
            THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S
            POST-CONVICTION RELIEF CLAIM BASED ON THE
            FAILURE TO CALL ALIBI WITNESSES.

            POINT II
            DEFENDANT WAS ENTITLED TO              AN EVIDENTIARY
            HEARING ON THE REMAINDER               OF HIS POST-
            CONVICTION RELIEF CLAIMS.

We find insufficient merit in these arguments to warrant further

discussion in a written opinion.               R. 2:11-3(e)(2).   In addition

to affirming substantially for the reasons given by Judge Ravin

in his eighteen-page written decision, we add the following brief

remarks.

     Defendant maintains that his trial counsel failed to produce

testimony from two alibi witnesses: defendant's mother; and a

friend, who is the mother of defendant's child. At the evidentiary

hearing, the PCR judge took testimony from these witnesses and

defendant's trial counsel. Defendant argued he was with the friend

on the night of the murders.           The mother was unable to testify

from personal knowledge that defendant was with the friend when



                                       5                              A-0630-16T1
the murders occurred.     Defendant's certification, in support of

his   petition,   conflicted   with     the   friend's    testimony   and

certification,    the   mother's   certification,   and    investigative

reports.     Indeed the friend was unable to say when defendant

arrived at her home.

      Judge Ravin made detailed credibility findings.          He found

defendant's mother "largely credible," defendant's trial counsel

credible, and the friend incredible.      Most importantly, the judge

found that

           [defendant] has failed to make out a prima
           facie case of ineffective assistance of
           counsel based on [trial counsel's] failure to
           call [the friend and mother] as alibi
           witnesses. . . .    [Trial counsel] testified
           that he does not recall being approached by
           either [the friend or mother] about proffering
           their   testimony   as  alibi   witnesses   on
           [defendant's] behalf.    He testified that he
           had a general discussion about alibi witnesses
           with [defendant] and explained to him the
           risks of pursuing that strategy. On the basis
           of [trial counsel's] testimony, it does not
           appear that [trial counsel] made the strategic
           decision not to call [the mother and friend]
           as alibi witnesses; he claims, instead, that
           he was not aware that these witnesses could
           be presented as alibi witnesses.




                                    6                            A-0630-16T1
Judge Ravin also concluded that even if defendant had shown prong

one of Strickland,1 he failed to demonstrate a prima facie case on

prong two.

       We reject defendant's contention that he was entitled to an

evidentiary     hearing   on     the     remaining       points   of   purported

ineffectiveness. A defendant is entitled to an evidentiary hearing

only when he or she "has presented a prima facie [case] in support

of    [PCR],"   meaning   that    "the       defendant    must    demonstrate    a

reasonable likelihood that his or her claim will ultimately succeed

on the merits."    State v. Marshall, 
148 N.J. 89, 158 (1997) (first

alteration in original) (quoting State v. Preciose, 
129 N.J. 451,

462-63).     Defendant fails to demonstrate a reasonable likelihood

of success on the merits for his remaining PCR claims, and thus

he is not entitled to an additional evidentiary hearing.

       Affirmed.




1
     Strickland v. Washington, 
466 U.S. 668 (1984).

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