STATE OF NEW JERSEY v. JOHN K. AGYEMANG
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4163-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN K. AGYEMANG,
Defendant-Appellant.
______________________________
Argued November 8, 2017 – Decided February 15, 2018
Before Judges Fisher and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-11-3427.
Brenden T. Shur argued the cause for appellant
(Law Offices of John J. Zarych, attorney;
Brenden T. Shur, on the brief).
Linda A. Shashoua, Assistant Prosecutor,
argued the cause for respondent (Mary Eva
Colalillo, Camden County Prosecutor,
attorney; Linda A. Shashoua, of counsel and
on the brief).
PER CURIAM
We granted defendant John K. Agyemang's motion for leave to
consolidate appeals relating to his applications for a Graves Act1
waiver, discovery for Graves Act cumulative files, and post-
conviction relief (PCR). Although not requested in that motion
we also consolidate his appeal from the denial of his motion for
a new trial for purpose of this opinion.
Defendant was convicted after a jury trial of second-degree
possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-
4(a)(1), and third-degree criminal restraint,
N.J.S.A. 2C:13-
2(a).2
He argues:
POINT I
THE LOWER COURT ERRED IN DENYING APPELLANT'S
MOTION TO ACCESS THE STATE'S GRAVES ACT
CUMULATIVE FILES.
POINT II
THE LOWER COURT ERRED IN DENYING APPELLANT'S
PETITION FOR [PCR].
A. FAILURE TO MAKE A GRAVES WAIVER
APPLICATION
B. FAILURE TO REQUEST THE CUMULATIVE
FILE
C. FAILURE TO CALL CHARACTER WITNESSES
1 N.J.S.A. 2C:43-6(c).
2
The State dismissed a fourth-degree aggravated assault charge
in the indictment against defendant after the jury could not reach
a verdict on that count.
2 A-4163-15T2
D. FAILURE TO CALL DR. PIERSON
E. FAILURE TO PROVIDE THE JURY WITH
INFORMATION REGARDING WHY A GUN
OWNED BY APPELLANT WAS IN POLICE
CUSTODY
F. FAILURE TO OBJECT TO STATE POINTING
A GUN AT THE JURY DURING CLOSING
STATEMENTS
G. FAILURE TO ADEQUATELY MEET WITH
APPELLANT PRIOR TO HIS TESTIFYING
POINT III
THE [LOWER] COURT ERRED IN NOT GRANTING
APPELLANT'S MOTION FOR NEW TRIAL BASED ON THE
NUMEROUS ISSUES DURING TRIAL AND CLOSING
ARGUMENTS.
POINT IV
THE LOWER COURT ERRED IN FAIING TO GRANT A NEW
TRIAL DUE TO THE FACT THAT THE VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE.
We disagree and affirm.
I.
We reject defendant's arguments in Point I. Our Supreme
Court recently held that "defendants are not entitled to discovery
of a prosecutor's case-specific memorializations and cumulative
files when challenging the denial of a Graves Act waiver in an
Alvarez3 motion because there are sufficient procedural safeguards
in place for meaningful judicial review of a prosecutor's waiver
3
State v. Alvarez,
246 N.J. Super. 137 (1991).
3 A-4163-15T2
decision." State v. Benjamin,
228 N.J. 358, 375 (2017). The
motion judge, therefore, did not err in denying defendant's request
for the State's cumulative files in order to challenge the denial
of his request for a Graves Act waiver.4
II.
Defendant's timely-filed PCR application was denied without
an evidentiary hearing. Our review of the factual inferences
drawn by the court from the record is therefore de novo. State
v. Blake,
444 N.J. Super. 285, 294 (App. Div.), certif. denied,
226 N.J. 213 (2016). Likewise, we review de novo the PCR court's
legal conclusions. Ibid.
In order to establish a case of ineffective assistance of
counsel defendant must demonstrate a reasonable likelihood of
success under the two-prong test established by Strickland v.
Washington,
466 U.S. 668, 694 (1984), and adopted by our Supreme
Court in State v. Fritz,
105 N.J. 42, 58 (1987). A defendant must
first show that counsel was deficient, or made errors so egregious
that counsel was not functioning effectively as guaranteed by the
Sixth Amendment of the United States Constitution. Strickland,
4
On motion by the prosecutor or referral by a sentencing judge
with the approval of the prosecutor,
N.J.S.A. 2C:43-6.2 authorizes
an assignment judge to grant relief from the mandatory-minimum-
term sentencing provisions of the Graves Act,
N.J.S.A. 2C:43-6(c),
for first-time Graves Act offenders.
4 A-4163-15T2
466 U.S. at 687. A defendant must also demonstrate that there
exists "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694. There is a strong presumption that
counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.
Id. at 690. Further, because prejudice is not presumed, Fritz,
105 N.J. at 60-61, defendant must establish "how specific errors
of counsel undermined the reliability of the finding of guilt."
United States v. Cronic,
466 U.S. 648, 659 n.26 (1984).
Because, under the Benjamin holding, the State's cumulative
files were not discoverable,
228 N.J. at 375, we reject defendant's
argument that counsel was ineffective for failing to request those
files.
Defendant's argument that his trial counsel was ineffective
because he failed to seek a Graves Act waiver fails to convince
us that the results of the proceedings would have been different
if an application was made. There is no indication the prosecutor
would have moved the assignment judge to impose a reduced sentence,
especially considering the State claimed – and the jury obviously
found – defendant possessed a gun for an unlawful purpose during
a videotaped incident in which he criminally restrained the victim.
5 A-4163-15T2
Moreover, the prosecutor's motion for waiver would not have
automatically resulted in a probationary sentence. If a prosecutor
moves before an assignment judge, the judge has the authority to
choose to impose a probationary sentence or a one-year mandatory
prison term. State v. Nance,
228 N.J. 378, 394 (2017). A
prosecutor may argue in favor of one sentence recommendation or
another, but the judge need not accept that recommendation. Ibid.
Further, the acceptance of a Graves Act waiver does not exempt
defendant – on a second-degree crime – from the presumption of
incarceration. Id. at 395-96.
Defendant contends trial counsel failed to submit evidence
of: defendant's long-standing military service; his protection-
based reason for possessing the gun in connection with his pharmacy
practice; his assertion that he had no intention to harm anyone
when he pranked the victim; and the numerous character references
accessible to counsel, so that defendant's case could be "removed
from the normal course of prosecution" and a probationary sentence
be extended. We agree with the PCR judge's finding that there is
nothing in the record to indicate defendant would have accepted a
probationary sentence.
Defendant also argues his trial counsel ineffectively failed
to call character witnesses and Dr. Melvin Pierson at trial. A
defendant who "asserts that his attorney failed to call witnesses
6 A-4163-15T2
who would have exculpated him . . . must assert the facts that
would have been revealed, 'supported by affidavits or
certifications based upon . . . personal knowledge'". State v.
Petrozelli,
351 N.J. Super. 14, 23 (App. Div. 2002) (quoting State
v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999)). As the
PCR judge found, defendant failed to submit, in connection with
his PCR petition, affidavits or certifications from any
prospective character witnesses or Pierson. We do not know what
those witnesses would have said, and do not know if they were
available to testify. See State v. Arthur,
184 N.J. 307, 326
(2005).
Defendant also failed to establish the second prong of the
standard in arguing trial counsel erred in failing to call
witnesses to testify about his reputation for honesty and non-
violence. Even if counsel was ineffective by failing to call
those witnesses, defendant's reputation for honesty was besmirched
when, in his statement to police, he denied pointing the gun at
the victim, contrary to surveillance footage which showed him
doing just that. His reputation for non-violence was also sullied
by that same footage. Testimony of any character witnesses would
be dubious in light of that evidence.
Likewise, even considering defendant's now-proffered argument
that Pierson would have testified that he "consistently played
7 A-4163-15T2
jokes on [the victim] and others . . . during [the victim's]
employment" with Pierson, showing the victim had reason to believe
she was not in danger, that evidence does not satisfy the second
prong of the standard. The victim did not know of Pierson's
involvement until well after the incident. The victim's mental
state, as the PCR judge noted, was not an element of either crime
for which defendant was convicted. And defendant admitted that
the victim was so shaken during the incident she could not dial
the phone to call Pierson, and that Pierson never told defendant
to possess or point a gun during the prank.
We reject defendant's argument that counsel was ineffective
for failing to present evidence to explain a detective's trial
testimony referencing a gun owned by defendant – not relevant to
the instant matter – that was in police custody. The statement
was made when the assistant prosecutor was attempting to elicit
from the detective defendant's misstatements about where the gun
brandished to the victim was located. After the detective related
defendant's statement that the gun was in a gun shop, the assistant
prosecutor asked if defendant mentioned that the gun was at another
location. Instead of the answer the prosecutor was seeking – that
defendant said it was at a friend's house – the detective said,
"There was another weapon that he said was in . . . police custody."
Trial counsel thereafter cross-examined the detective about his
8 A-4163-15T2
mention of three guns and established that the detective might not
have been clear in questioning defendant about the location of the
gun he was seeking.
The trial judge characterized the statement by the detective
as "fleeting" – so fleeting that he missed it. In fact, trial
counsel broached the subject to the trial judge saying, "I don't
know if the [c]ourt's aware, but one of the weapons [defendant]
owned was in the custody of the police for some other reason." It
is clear that the brief comment about the gun had no relation to
the gun used during the crimes charged against defendant, and that
there was no mention that another gun was in police custody because
of some other misdeed by defendant. Because there was no evidence
elicited about the gun in police custody, the jury would had to
have speculated about that gun in order for defendant to be
prejudiced – an act from which they were prohibited by the trial
judge in his final charge. A jury is presumed to follow the trial
court's instructions, State v. Burns,
192 N.J. 312, 335 (2007);
hence, defendant was not prejudiced by the detective's fleeting
remark.
Defendant contends trial counsel was ineffective for failing
to object when the assistant prosecutor – during summation –
pointed the gun toward the jury panel. The record reveals the
9 A-4163-15T2
prosecutor pointed the gun while she was refuting defendant's
contention that the gun wasn't loaded:
Oh, no, it wasn't loaded. Really? Why does
he have the gun? To protect himself. He told
you, I have it to protect myself in case I get
robbed, in case somebody comes in and tries
to shoot me, in case someone tries to harm me.
I put it in my holster every morning. That's
what he said. Oh, no, but I have the clip
hanging. Okay. Oh, I'm sorry. You're robbing
me? Can you wait a minute? Don't shoot yet.
I've got to get my gun out, take my loaded
magazine, which is hanging there, and shove
it in now, and now -- now I can -- I'm so
sorry that I pointed it that way. And now I
can protect myself. Really?
The PCR judge found "the record is clear that the gun was not
loaded." The trial judge also told the jury they would not have
the bullets and the gun together in the jury room.
Examining defendant's contention under the circumstances
existing at the time, we conclude defendant has met neither of the
Fritz/Strickland factors. The brief and obviously inadvertent
pointing of the unloaded gun during a demonstration of how
defendant would unholster and load the weapon if threatened,
followed by the prosecutor's immediate apology, was not
objectionable or prejudicial. No objection was made. See State
v. Frost,
158 N.J. 76, 83-84 (1999) (finding when a defense counsel
fails to objects to improper remarks, "the remarks will not be
deemed prejudicial"). Nor, especially since there was no evidence
10 A-4163-15T2
of any juror reaction, is there any established prejudice to
defendant. If the pointing was simultaneously accompanied by the
assistant prosecutor asking the jury how they would feel if a gun
was pointed at them, our analysis and conclusion would differ;
that was not the case here.
Finally, defendant argues that trial counsel was ineffective
because he failed to meet with defendant prior to his testimony,
and have defendant "acknowledge" to the jury that his statement
to the police in which he denied pointing the gun at the victim –
a statement belied by the surveillance footage – was made in fear
of being arrested. We determine that argument is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). Defendant admits that "it would have been difficult"
for him to "explain" that motivation to the jury. Defendant was
aware of the video and his statement. He knew he had falsely
denied pointing the gun in the video – parts of which were played
for the jury – and chose to continue that lie on the witness stand.
It was not incumbent on trial counsel to manufacture an
explanation. If that was the true reason for the initial lie to
the police, nothing prevented defendant from relating that reason.
Defendant's PCR application was properly denied.
11 A-4163-15T2
III.
Defendant argues his motion for a new trial was erroneously
denied, urging that the prosecutor effectively vouched for the
victim's credibility by consoling her on the witness stand; and
that the detective's testimony regarding the gun in police custody,
combined with the prosecutor's conduct during summation –
repeatedly telling the jury defendant was a liar, asking jurors
how they would feel if a gun was pointed at them, and pointing the
gun at the jury – denied him a fair trial. In a separate point,
defendant argues he is entitled to a new trial because the verdict
was against the weight of the evidence.5
Under our well-settled standard of review, pursuant to Rule
2:10-1, a trial court's ruling on a motion for a new trial "shall
not be reversed unless it clearly appears that there was a
miscarriage of justice under the law." A trial judge shall not
set aside a jury verdict unless "it clearly and convincingly
appears that there was a manifest denial of justice under the
law." R. 3:20-1. In this context, there is no difference between
5
We consider defendant's argument, rejecting the State's
contention that it is procedurally barred because "post-conviction
proceedings are not a substitute for direct appeal, and so,
defendant's claims are inappropriately raised for the first time
in the instant PCR appeal." The denial of the motion for a new
trial was included in the notice of appeal; this is defendant's
first appeal.
12 A-4163-15T2
"miscarriage of justice" and "manifest denial of justice under the
law." See Pressler & Verniero, Current N.J. Court Rules, cmt. 2
on R. 3:20-1 (2017) (citing State v. Perez,
177 N.J. 540, 555
(2003)). "[A] motion for a new trial is addressed to the sound
discretion of the trial judge, and the exercise of that discretion
will not be interfered with on appeal unless a clear abuse has
been shown." State v. Armour,
446 N.J. Super. 295, 306 (App.
Div.) (alteration in original) (quoting State v. Russo,
333 N.J.
Super. 119, 137 (App. Div. 2000)), certif. denied,
228 N.J. 239
(2016).
We conclude the motion judge did not abuse his discretion in
denying the motion and, incorporating our foregoing remarks on
some of these issues, affirm substantially for the reasons set
forth in his oral opinion on October 9, 2015. The grounds advanced
by defendant did not clearly and convincingly establish a manifest
denial of justice in light of the strong evidence supporting the
State's allegations. Even if defendant did not receive a "perfect
trial," he received a fair one. See State v. Loftin,
287 N.J.
Super. 76, 110 (App. Div. 1996).
Affirmed.
13 A-4163-15T2
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