STATE OF NEW JERSEY v. TROY LONE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1074-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TROY LONE a/k/a TROY LONE,
JR., DYMIERE DEMBY, and TERRY
LONE,
Defendant-Appellant.
_______________________________
Submitted November 26, 2018 – Decided December 6, 2018
Before Judges Haas and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 10-12-3446.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alison S. Perrone, Designated Counsel;
William Welaj, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Linda A. Shashoua, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Troy Lone appeals from a June 16, 2017 order denying his
petition for post-conviction relief ("PCR") without an evidentiary hearing. We
affirm.
We summarize the relevant procedural history and facts from the record
before us. On September 28, 2010, Mr. Ruiz was employed as a taxicab driver
for Five Star Cab Service in Camden. At 2:00 a.m., Ruiz drove to a gas station
at the corner of Kaighns Avenue and Mt. Ephraim Avenue in Camden. Ruiz
was accompanied by a friend, Mr. Caban. Ruiz pulled up to a gas pump, exited
the cab, and went inside the gas station office to prepay for his purchase of gas.
Meanwhile, Caban exited the cab and stood near its trunk waiting for Ruiz to
return.
After Ruiz paid for gas, he came back outside and began pumping gas into
the cab when a white Ford Taurus pulled up to another gas pump. A man exited
the car and went into the gas station office while a woman remained in the car.
The man returned from the office and began arguing with Caban. As the
argument escalated, the man and Caban "got face to face," and Ruiz started to
walk over to break up the argument. As Ruiz walked over, the man pulled out
a gun. When Caban saw the gun, he put his hands up and began to back away.
The man then put the gun against Ruiz's stomach, walked Ruiz towards the rear
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of the cab, and went through his pockets. The man took Ruiz's cell phone and
wallet, which contained eighty dollars cash, and then told him to remove his
earrings. As Ruiz was unscrewing his earrings, Caban "took off and ran."
Ruiz then heard Caban screaming "hey, over there, over there." Caban
was seeking to get the attention of a Camden police cruiser he noticed driving
by the gas station. He flagged down the vehicle, driven by Officer Gregory
Young, and told him someone in the white Taurus had a gun. Young looked
about fifty yards away under the bright lights of the gas station, seeing a man,
later identified as defendant, talking to Ruiz. After defendant noticed Young,
he got in the passenger seat of the Taurus. The Taurus then drove out of the gas
station with Young's cruiser in pursuit with its lights and sirens activated.
Young never lost sight of the Taurus as he pursued it and called for back-up.
The Taurus stopped two blocks down the street. Young drove his vehicle to the
Taurus. He got out the vehicle, pulled his gun out, and pointed it at the driver's
side door of the Taurus. The driver and defendant remained in the car until
police assistance arrived.
After eight additional police units arrived at the scene, "felony car stop"
procedures were implemented. The driver and defendant were removed from
the vehicle and handcuffed. Defendant was the same man Young saw enter the
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3
Taurus at the gas station. Young searched the Taurus and found two cell phones,
one on the front seat and another on the back seat, as well as a jacket and black
wool masks on the back seat. Eighty dollars in cash was found in a storage
compartment beneath the radio. Young did not find a gun inside the car.
However, the police conducted a search of the two block route from the gas
station to where the Taurus pulled over, and found a gun lying in a grassy area
about three feet away from a sidewalk on the north side of Kaighns Avenue.
Subsequently, the police brought Ruiz to where the Taurus was stopped
and defendant was being held under arrest. The police removed defendant from
the police car and asked Ruiz if he was the person who robbed him. Ruiz
answered affirmatively.
On December 20, 2010, a Camden County grand jury indicted defendant
on two charges of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (counts
one and two); second-degree possession of a handgun for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b) (count four); two charges of fourth-degree
aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (counts five and six);
and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b)
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(count seven). Prior to trial, on April 30, 2012, the trial judge dismissed counts
two and five (relating to Caban) upon the State's motion.
A jury trial was held between May 2 and 4, 2012 before Judge Gwendolyn
Blue. At trial, the State presented seven witnesses, including Officer Johnson
and Ruiz. During his testimony, Officer Johnson identified defendant as the
male passenger in the Taurus. During his testimony, Ruiz acknowledged he was
subpoenaed to testify and was conveyed to court by the prosecutor's
investigative officers. Ruiz did not provide an in-court identification of
defendant as the person who robbed him, testifying: "To be honest, it's been
almost two years, so I can't even say yes." Instead, the State relied upon the
identification Ruiz made of defendant at the scene when defendant was arrested.
Defendant did not testify or present any witnesses.
In his summation, defense counsel argued that the State had failed to prove
that the firearm recovered belonged to defendant and that defendant had taken
money from Ruiz. He also attacked Ruiz's credibility, arguing that the only
truthful testimony he provided was that he could not identify defendant in court
as the person involved in the robbery.
The jury returned a verdict finding defendant guilty of counts one, three,
four, and six. Count seven was dismissed by the State following the verdict. On
A-1074-17T3
5 July 20, 2012, the trial court granted the State' s motion to impose a discretionary
extended term sentence, pursuant to N.J.S.A. 2C:44-3(a), and imposed an
aggregate term of thirty years' imprisonment subject to eighty-five percent
parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43- -
7.2(c).
On September 8, 2014, this court affirmed defendant's convictions and
sentence. State v. Lone, A-1074-17T3 (App. Div. Sep. 8, 2014). On March 18,
2015, the New Jersey Supreme Court denied defendant's petition for
certification. State v. Lone, 221 N.J. 219 (2015).
On June 9, 2015, defendant filed a pro se PCR petition. Defendant
thereafter filed an amended PCR petition, supplemented with PCR counsel's
brief and a certification by defendant. After considering the amended petition
without an evidentiary hearing, Judge Blue rendered an oral decision denying
the petition on June 16, 2017. On appeal of the denial of PCR, defendant raises
the following points for our review:
POINT I: THE POST-CONVICTION RELIEF
COURT ERRED IN DENYING THE DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE FAILED TO RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL.
A-1074-17T3
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A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR POST
CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO UTILIZE TWO WITNESSES AT
TRIAL WHO COULD HAVE PRESENTED
RELEVANT AND POTENTIALLY EXCULPATORY
TESTIMONY ON THE DEFENDANT'S BEHALF.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO FILE VARIOUS MOTIONS ON THE
DEFENDANT'S BEHALF.
1. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO PURSUE A MOTION TO EXCLUDE
THE ELICITATION OF PREJUDICIAL AND
DAMAGING TESTIMONY BY THE STATE
PURSUANT TO N.J.R.E. 404 (b).
2. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO MAKE A MOTION SEEKING TO
PRECLUDE THE SHOW-UP IDENTIFICATION
PROCEDURE UTILIZED BY LAW ENFORCEMENT
AT THE SCENE.
3. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
A-1074-17T3
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TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO MAKE A MOTION TO DISMISS
CHARGES BASED UPON LAW ENFORCEMENT'S
FAILURE TO PRESERVE CRITICAL EVIDENCE
WHICH WAS POTENTIALLY EXCULPATORY TO
THE DEFENSE.
D. TRIAL COUNSEL DID NOT ADEQUATELY
REPRESENT THE DEFENDANT ARISING OUT OF
HIS FAILURE TO THOROUGHLY DISCUSS WITH
HIS CLIENT ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION WHETHER
OR NOT TO TESTIFY, AS A RESULT OF WHICH
HE DID NOT TESTIFY IN HIS OWN DEFENSE.
E. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO CONDUCT AN EFFECTIVE CROSS
EXAMINATION OF THE ALLEGED VICTIM.
F. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO CONVEY TO THE DEFENDANT
RELEVANT PLEA OFFERS PRIOR TO TRIAL.
Having considered the record in light of the applicable legal principles,
we find no merit in defendant's arguments. We affirm for substantially the sound
reasons expressed in Judge Blue's oral opinion. We add only the following
comments.
In cases where the PCR court does not conduct an evidentiary hearing, we
review the PCR judge's legal and factual determinations de novo. State v.
A-1074-17T3
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Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (citation omitted). A PCR
petitioner faces the burden to establish the grounds for relief by a preponderance
of the credible evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citations
omitted). To establish an ineffective-assistance-of-counsel claim, a convicted
defendant must demonstrate: (1) counsel's performance was deficient, and (2)
the deficient performance actually prejudiced the accused's defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42,
58 (1987) (adopting two-part Strickland test in New Jersey).
We first turn to defendant's argument that trial counsel was ineffective for
failing to call two witnesses who may have presented exculpatory evidence.
First, he contends that trial counsel should have called the driver of the Taurus,
citing to an investigation report dated March 12, 2011 from an investigator for
trial counsel. According to the report, the driver told the investigator that she
observed an argument and physical altercation between defendant and two
Hispanic males from her car at the gas station, but defendant did not have extra
items when he returned to the car and never had a firearm. Second, defendant
contends that trial counsel should have called a man who was allegedly present
at the gas station at the time of the robbery. In a handwritten signed statement,
the man states that he was present at the gas station during the time of the alleged
A-1074-17T3
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incident and "did not see [defendant] commit any type of robbery."
Additionally, in support of his PCR petition, defendant certified that he expected
trial counsel to call the driver of the Taurus, that the driver was present every
day at trial, and that he believed trial counsel would admit the cell phones as
evidence at trial to prove they belonged to defendant and the driver.
We agree with the PCR court that trial counsel was not ineffective for
failing to call these witnesses. In evaluating the first Strickland prong, a court
presumes counsel exercised reasonable judgment in trial strategy. See
Strickland, 466 U.S. at 689. "[L]ike other aspects of trial representation, a
defense attorney's decision concerning which witnesses to call to the stand is 'an
art,' . . . and a court's review of such a decision should be 'highly deferential[.]'"
State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466 U.S. at 683,
689). Additionally, a PCR petitioner asserting that his trial attorney
inadequately investigated a potential witness "must assert the facts that an
investigation would have revealed, supported by affidavits or certifications
based upon the personal knowledge of the affiant or the person making the
certification." Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999)).
A-1074-17T3
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In this case, defendant does not submit sworn affidavits from either of the
potential witnesses to support that they would have testified favorably to
defendant. Compare Porter, 216 N.J. at 350, 56-57 (holding that PCR petitioner
was entitled to evidentiary hearing where he submitted an affidavit from a
potential albi witness stating that she was with defendant at the time of the crime
and had informed trial counsel that she wished to testify), with Cummings, 321 N.J. Super. 154, 171 (App. Div. 1999) (holding that PCR petitioner was not
entitled to evidentiary hearing where he failed to submit affidavit from potential
alibi witness). Additionally, although the driver was present during the trial, 1
defendant presents no evidence that the man who was at the gas station was
available and willing to testify at trial. See Arthur, 184 N.J. at 326 ("[T]here is
no evidence that [potential witness] was even available to testify at the time of
defendant's trial and thus no foundation for concluding that the failure to call
her constituted ineffective assistance of counsel.").
Moreover, as noted by the PCR court, the driver's credibility may have
been suspect because she was with defendant at the time of the robbery, drove
away from the scene with the defendant, and was arrested on an outstanding
1
During the trial, the court noted on the record that the driver was present
outside the courtroom, but was sequestered as a potential witness.
A-1074-17T3
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warrant once the police pulled over her vehicle. Considering the risks in having
the driver testify, as well as the lack of support in the record that the proposed
witnesses would have testified consistently with their previous statements,
defendant fails to present adequate evidence to support a prima facie claim that
trial counsel was ineffective or that he suffered any prejudice as a result of the
failure to call these witnesses. See id. at 322 (upholding denial of PCR where
"there was reasonable basis for defense counsel's strategic decision not to call
[potential witness] as a defense witness because his testimony was more likely
to harm than to help defendant's case").
We next turn to defendant's arguments that his attorney was ineffective by
failing to file a motion in limine to preclude any testimony about the two black
wool masks recovered from the Taurus, failing to request a Wade2 hearing to
exclude Ruiz's out-of-court identification of defendant, and failing to file a
motion to dismiss the indictment because the State failed to preserve the
cellphones recovered by the police. To sustain a claim that trial counsel was
ineffective by failing to file a motion, a defendant must demonstrate that the
motion would have been meritorious. See State v. O'Neal, 190 N.J. 601, 619
(2007) ("It is not ineffective assistance of counsel for defense counsel not to file
2
United States v. Wade, 388 U.S. 218 (1967).
A-1074-17T3
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a meritless motion."). We agree with the sound analysis of the PCR court that
none of the motions proposed by defendant would have been meritorious. 3
Therefore, trial counsel was not ineffective for failing to file these motions.
Finally, we briefly address defendant's remaining arguments. We reject
defendant's argument that trial counsel failed to adequately discuss his right to
testify. After the trial court gave defendant an opportunity to confer with trial
counsel off the record, defendant waived his right to testify on the record.
Additionally, the trial court also conducted an extensive voir dire of defendant
regarding his right to testify. See State v. Ball, 381 N.J. Super. 545, 557 (App.
Div. 2005) (holding that defendant's case not prejudiced because "regardless of
whether defendant was advised by counsel, the trial judge fully explained
defendant's right to testify, the possible consequences of his choice and the
option to have the jury instructed to draw no inference from defendant's choice
not to testify").
We also reject defendant's argument that his trial counsel conducted an
ineffective cross-examination of Ruiz, specifically by failing to impeach the
3
We note that the PCR court initially addressed whether a motion to suppress
the masks as unlawfully seized should have been filed, but supplemented the
record to include a ruling on whether testimony regarding that masks should
have been excluded as unduly prejudicial under N.J.R.E. 403 and N.J.R.E.
404(b).
A-1074-17T3
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credibility of Ruiz with prior convictions. We agree with the PCR court that
trial counsel's cross-examination of Ruiz constituted sound trial strategy, as trial
counsel may not have impeached Ruiz with the prior convictions so that Ruiz
was credible when he stated that he could not identify the defendant in court .
Moreover, trial counsel did cross-examine Ruiz about inconsistencies in his
testimony about the amount of money that was taken from him and whether he
had seen the handgun that police had recovered.
We also reject defendant's arguments that trial counsel failed to inform
him of plea offers given by the State and gave him constitutionally ineffective
advice about whether to accept a plea offer. When raising an ineffective-
assistance-of-counsel claim based on an attorney's failure to recommend
accepting a plea offer, a defendant must show that but for the ineffective advice
of counsel, he would have accepted the plea offer and received a lesser sentence
than he received after trial. See Lafler v. Cooper, 566 U.S. 156, 163-64 (2012).
We agree with the PCR court that the record does not support that trial counsel
failed to convey any plea offers or that defendant suffered any prejudice as a
result of trial counsel's advice regarding plea offers.
The PCR judge did not misapply her discretion in denying an evidentiary
hearing, as defendant failed to establish a prima facie basis for relief. See State
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v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted) ("If the court perceives
that holding an evidentiary hearing will not aid the court's analysis of whether
the defendant is entitled to post-conviction relief, . . . then an evidentiary hearing
need not be granted."). To the extent that we have not specifically addressed
any issues raised by defendant, we find they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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