STATE OF NEW JERSEY v. MARK S. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE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-4233-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MARK S. WILLIAMS,

     Defendant-Appellant.
________________________________

              Submitted March 14, 2018 – Decided April 10, 2018

              Before Judges Fuentes and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              99-02-0120.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique D. Moyse, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Joie D. Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Mark S. Williams appeals from a February 12, 2016

order denying his motion for reconsideration and his petition for
post-conviction       relief      (PCR)        after   oral     argument    and     an

evidentiary hearing.           We affirm.

     Following a jury trial, defendant was convicted of murder,


N.J.S.A. 2C:11-3(a)(1), (2); and possession of a weapon for an

unlawful       purpose,    
N.J.S.A.   2C:39-4(a).          The    court    sentenced

defendant to a life term of imprisonment with a thirty-year

mandatory minimum period of parole ineligibility and a concurrent

ten-year term       of imprisonment with a five-year mandatory minimum

period of parole ineligibility. The court also granted the State's

motion    to    dismiss    a    violation      of   probation     and   imposed   the

appropriate fines and fees.

     Defendant       appealed.        We       affirmed   the     convictions     and

sentence. The New Jersey Supreme Court denied defendant's petition

for certification.          State v. Williams, No. A-1526-02 (App. Div.

Oct. 17, 2003), certif. denied, 
180 N.J. 454 (2004).

     The essential procedural history is easily summarized.                         In

October 2007, defendant filed a petition for PCR.                       In November

2010, following a preliminary hearing and an evidentiary hearing,

the court issued a written decision outlining its reasons for

denying the PCR.

     On    December       17,    2010,     defendant      filed     a   motion    for

reconsideration.          Following arguments in August 2011, the court



                                           2                                 A-4233-15T1
denied defendant's motion for reconsideration and petition for PCR

in a written decision.

     In January 2014, defendant filed a motion for a limited remand

with the Appellate Division, which we granted.                  Defendant then

filed a motion for a new trial, pursuant to Rule 3:20-1, based

upon newly discovered evidence.            After oral argument, the court

denied    defendant's    request   for     a    new    trial   but   granted     an

evidentiary hearing.       The hearing was conducted to address the

issue    of   cellular   phone   records       which   defendant     argued   were

exculpatory and should have been presented to the jury.                        The

hearing included testimony from defendant, his trial counsel, his

wife and his mother-in-law.        In August 2015, after consideration

of the testimony and the arguments of counsel, the court found

that defendant's claims lacked credibility.               Predicated upon that

finding, the court denied the petition for PCR.

     Defendant filed a motion for reconsideration. After oral

argument, the court denied the motion.                Defendant filed a notice

of appeal from the denial of the motion for reconsideration and

the petition for PCR.

     Defendant raises the following issues on appeal:

              POINT I

              MR. WILLIAMS IS ENTITLED TO A HEARING ON HIS
              CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.


                                      3                                   A-4233-15T1
     (A) TRIAL COUNSEL FAILED TO IDENTIFY
     AND FULLY EXPOSE THE BIAS OF SHAGUYE
     COLBERT.

     (B) TRIAL COUNSEL FAILED TO ELICIT
     EVIDENCE FROM JASMINE AND ANGELA
     WILLIAMS    THAT,     CONTRARY    TO
     YARBOROUGH'S DAMAGING TESTIMONY,
     YARBOROUGH HAD NOT BEEN WITH MARK
     WILLIAMS ON THE DAY OF THE SHOOTING;
     FAILED TO CALL ALIBI WITNESS ROXANNE
     HARRY; AND FAILED TO CALL WITNESSES
     WHO WOULD HAVE CALLED INTO DOUBT
     THAT THE MAROON CAR SEEN AT THE TIME
     OF THE SHOOTING WAS VAUGHN'S CAR
     WHICH MR. WILLIAMS HAD BORROWED.

           1. Trial counsel failed
           to     elicit     crucial
           testimony from Angela and
           Jasmine Williams due to a
           lack of investigation.

           2.   Counsel   failed to
           interview alibi witness
           Roxanne Harry.

           3.   Counsel  failed   to
           present   witnesses   who
           would have challenged the
           [S]tate's        evidence
           concerning   the   maroon
           car.

     (C) TRIAL COUNSEL FAILED TO REQUEST
     VOIR DIRE TO ASSURE THAT THE
     DELIBERATING JURY HAD NOT BEEN
     ADVERSELY INFLUENCED.

POINT II

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE
BY FAILING TO IDENTIFY AND FULLY EXPOSE THE
MOTIVATION FOR THADDEUS YARBOROUGH TO TESTIFY


                       4                        A-4233-15T1
         UNTRUTHFULLY AND FAILING TO INVESTIGATE HIS
         ALIBI DEFENSE.

              (A)    TRIAL    COUNSEL   RENDERED
              INEFFECTIVE ASSISTANCE BY FAILING
              TO IDENTIFY AND FULLY EXPOSE THE
              MOTIVATION FOR THADDEUS YARBOROUGH
              TO TESTIFY UNTRUTHFULLY.

              (B)    TRIAL    COUNSEL    RENDERED
              INEFFECTIVE ASSISTANCE BY FAILING
              TO INVESTIGATE HIS ALIBI DEFENSE.

         POINT III

         MR. WILLIAMS IS ENTITLED TO A REMAND BECAUSE
         THE PCR COURT DID NOT ADDRESS ALL OF HIS CLAIMS
         ON THE MERITS.

         POINT IV

         THE PCR COURT ERRED BY FAILING TO GRANT MR.
         WILLIAMS' MOTION FOR RECONSIDERATION AND
         FINDING HIS MOTION UNTIMELY.

              (A) THE DENIAL OF THE MOTION FOR
              RECONSIDERATION ON THE MERITS WAS IN
              ERROR.

              (B) THE DENIAL OF THE MOTION AS
              UNTIMELY WAS IN ERROR.

         POINT V

         ALL CLAIMS IN MR. WILLIAMS' PETITIONS AND
         BRIEFS ARE INCORPORATED IN THIS APPEAL.

    Having considered these arguments in light of the record and

our standard of review, we affirm the denial of the PCR for the

reasons set forth in Judge Michael A. Toto's comprehensive and




                               5                           A-4233-15T1
well-reasoned memorandum of opinion attached to the August 25,

2015 order.

     Finally, we hold that defendant's argument the judge erred

in not granting the motion for reconsideration lacks sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

     Affirmed.




                                6                          A-4233-15T1