STATE OF NEW JERSEY v. MAURICE MOSLEY

NOT FOR PUBLICATION WITHOUT THE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-3984-16T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MAURICE MOSLEY,

     Defendant-Appellant.
______________________________

              Submitted March 6, 2018 – Decided March 22, 2018

              Before Judges Reisner and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 11-
              10-1905.

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

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

PER CURIAM

        Defendant Maurice Mosley appeals from a December 1, 2016

order denying his petition for post-conviction relief.                 We affirm.
     A jury convicted defendant of murder and associated offenses

in connection with the shooting of a pimp.          The shooting occurred

in front of two witnesses, who were prostitutes.          They identified

defendant from photo arrays, and they identified him at the trial.

We affirmed defendant's conviction on his direct appeal.                State

v. Mosley, No. A-4021-12 (App. Div. April 20, 2015).

     Defendant filed a PCR petition, raising several arguments,

all of which were addressed and rejected by Judge Verna G. Leath

in a written opinion dated December 1, 2016.            Pertinent to this

appeal,   defendant   argued   that   his   trial    counsel   should   have

objected to allegedly improper comments by the prosecutor during

her summation.   Judge Leath, who had also presided over the trial,

rejected that argument without a hearing.1          She concluded that the

prosecutor's   remarks   about   witness    credibility     were   made    in

response to defense counsel's summation, which disparaged the

witnesses as "crack smoking prostitutes."            The judge also found

that if there was any impropriety in the summation, it was harmless

error.




1
   As Judge Leath noted, she actually presided over two trials.
Defendant's first trial resulted in a hung jury; the second trial
resulted in a conviction.



                                      2                             A-3984-16T2
       Defendant   also    contended         that    his    attorney       should   have

requested a Wade2 hearing, and his appellate attorney should have

raised the identification issue on his direct appeal.                      Judge Leath

held an evidentiary hearing on that claim.

      At the hearing, defendant's former trial attorney testified

in considerable detail about his strategic reasons for not filing

a Wade motion.     He explained that he did not think there were

meritorious grounds to file a Wade motion and believed a hearing

would be denied. He also believed that, if the motion were granted

and a hearing were held, he would not prevail in excluding the

witnesses' identifications.         The attorney further reasoned that

he would give away his trial strategy in cross-examining the

witnesses at a Wade hearing, and he preferred to save his questions

for   cross-examination     at    trial.            Judge   Leath     credited      that

testimony,   and   found   that    the       attorney       pursued    a    reasonable

strategy. She concluded that his decision not to file a Wade motion

was "within the ambit of professional competence."

      On this appeal, defendant presents the following points of

argument:

            POINT I:    DEFENDANT'S CONVICTIONS MUST BE
            REVERSED BECAUSE TRIAL COUNSEL WAS INEFFECTIVE
            FOR NOT PURSUING A WADE HEARING.



2
    United States v. Wade, 
388 U.S. 218 (1967).

                                         3                                     A-3984-16T2
            POINT II: DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE OF COUNSELS' INEFFECTIVENESS FOR NOT
            PURSUING THE PROSECUTION'S INJECTION OF
            PERSONAL BELIEF BOLSTERING THE SURVIVING
            VICTIMS' CREDIBILITY IN SUMMATION; THEREFORE,
            THIS   MATTER  MUST   BE   REMANDED  FOR   AN
            EVIDENTIARY HEARING.

     On this appeal, we defer to the PCR judge's factual findings,

including her evaluation of witness credibility.                See State v.

Nash, 
212 N.J. 518, 540 (2013).      We find no basis to second-guess

Judge   Leath's   finding   that   defendant's   trial    counsel     made    a

reasonable strategic decision to forego a Wade hearing.             Defendant

did not overcome the "strong presumption that counsel exercised

reasonable   professional    judgment    and   sound    trial    strategy    in

fulfilling his responsibilities." Nash, 
212 N.J. at 542 (citations

omitted).

     We also agree with Judge Leath that the prosecutor's remarks

were within permissible bounds.       The prosecutor told the jury: "I

submit these girls were straightforward.               If they didn't see

something, they'd tell you. . . . And I think that became clear

on the stand."     The comments were made in response to defense

counsel's characterization of the witnesses' testimony as "lies"

and the witnesses as "crack smoking prostitutes."               Further, even

if the prosecutor's remarks had crossed the line, they did not

have a clear capacity to produce an unjust result.                R. 2:10-2.

Consequently, we agree that defendant did not satisfy either prong

                                     4                                A-3984-16T2
of the Strickland test.   See Strickland v. Washington, 
466 U.S. 668, 687 (1984).

    Affirmed.




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