STATE OF NEW JERSEY v. MALIK SINGER
Annotate this CaseNOT 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-4620-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALIK SINGER,
Defendant-Appellant.
____________________________
Submitted October 3, 2018 – Decided October 18, 2018
Before Judges Fuentes and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 08-06-
0398.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren R. Casale, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Malik Singer appeals from an order denying his post-
conviction relief (PCR) petition without an evidentiary hearing. We affirm.
I.
We described the facts underlying the criminal charges against defendant
in our opinion on his direct appeal, State v. Malik Singer, No. A-5270-11 (App.
Div. Aug. 13, 2015) (slip op. at 5-28) and briefly summarize the pertinent facts
here. 1 In 2008, defendant was charged in an indictment (No. 08-06-0398) with
first-degree murder of Michael Love, N.J.S.A. 2C:11-3(a)(1) and (2), first-
degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3,
and second-degree possession of a handgun for unlawful purposes, N.J.S.A.
2C:39-4(a). Codefendants Sa'id Kendrick and James Miller were charged in the
indictment with the same offenses. Two years later, defendant was charged in
a separate indictment (No. 10-03-0168) with three counts of first-degree
conspiracy to commit murder of three potential prosecution witnesses, N.J.S.A.
1
We limit our summary of the facts to those pertinent to the three charges
related to the murder of Michael Love. As is explained infra, defendant was
also charged and convicted of offenses that occurred after Love's murder,
including three counts of conspiracy to murder three potential prosecution
witnesses and three counts of conspiracy to commit witness retaliation. We do
not summarize the facts related to those crimes because they are not relevant to
any issues raised by defendant on appeal.
A-4620-16T1
2
2C:5-2 and N.J.S.A. 2C:11-2, and three counts of second-degree conspiracy to
commit witness retaliation, N.J.S.A. 2C:28-5(b). The indictments were
consolidated for trial.
The trial evidence showed that Love's body was found on the morning of
May 11, 2008, outside of the Ten's Enough social club in Franklin Township.
Police investigated, and it was later determined Love died from a single gunshot
wound to the head.
Detectives developed information causing them to identify a "James
Miller" and another individual with the street name or alias of "Face" as possible
suspects. The police also determined the suspects may have been using a
particular cellphone, which the Somerset County Prosecutor's Office determined
was then located in Stamford, Connecticut and belonged to Anne Marie
Pettigrew, who the police believed was associated with Kendrick. Officers
traveled to the location of the phone in Connecticut, where they found Kendrick
in possession of a handgun.
On May 13, 2008, the police set up surveillance of the home of a woman
who was reputed to be the mother of defendant's child. The police observed a
small gray car operated by a female driver with defendant in the passenger seat.
The police approached the vehicle and yelled, "Face, get down on the ground!"
A-4620-16T1
3
and, in response, defendant immediately got down. Defendant was handcuffed
and said to the officers, "You homicide?" The police told defendant he was
arrested in connection with "the shooting the other night."
Police administered Miranda2 warnings and interrogated defendant. He
denied his nickname was "Face," but also referred to himself as "Face."
Defendant volunteered, "I didn't kill nobody," and denied shooting Love or
being at the Ten's Enough club on the evening before Love's body was found.
He claimed he was with his girlfriend at a hotel during that evening. He admitted
that on the night prior to Love's murder he had possession of the handgun that
had been recovered from Kendrick, but explained he returned the handgun to
Kendrick prior to the shooting. Defendant also said Kendrick's street name was
"Face" and that Kendrick admitted he shot Love.
Ballistics evidence showed the bullet that caused Love's death was fired
from the gun the police recovered from Kendrick in Connecticut. Kendrick
testified at defendant's trial that, on the evening before Love's murder, defendant
was involved in a bar fight and then asked to borrow Kendrick's gun. According
to Kendrick, defendant returned to the bar, pointed the gun at the bar's patrons
and left. Kendrick testified he was using his mother's cellphone that evening
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4620-16T1
4
and loaned it to defendant, who used the phone to call for a ride. Kendrick
explained that he saw a gray or silver Honda Accord arrive. Defendant entered
the vehicle and the female driver then drove away.
Miller testified his street name was "Brim" and defendant's street name
was "Face." He stated that, on the evening before Love was murdered, he was
at the Ten's Enough club and had an argument with his child's mother, LaToya
Singleton, because she was drinking with Love.
Singleton testified that she had spent time with Love at the club during
the evening before Love's murder, and he gave her money as a present. She
gave the money to her friend Aisha Williams to hold so Miller would not know
Love gave her money.
Singleton explained that on the evening of Love's murder, she arrived at
the club with Miller, Williams and Kimberly Simonson. Williams testified that
Miller accused Singleton of "lap dancing" on Love, and that Miller and
Singleton then argued.
Williams described that as the result of an argument among others at the
club, she went outside and saw Miller, defendant and Love. Defendant stood
behind Love. Williams "saw defendant holding a gun, pointing it at Love's head,
A-4620-16T1
5
and pulling the trigger." On May 12, 2008, Williams selected defendant's
photograph from a photo array and identified him as the shooter.
Miller told the jury that he went to the Ten's Enough club on May 10,
2008, soon after 10:30 p.m. and became involved in an argument between
Simonson and her boyfriend, Willie Pitts. He called defendant to come to the
club as "security" or "back up" because he was concerned about Pitts. When
defendant arrived, Miller was outside of the club. He told defendant he "would
take care of Will[ie Pitts]" and to "back up Mr. Love." Miller explained that
Love was the person with whom his girlfriend, Singleton, had danced the
previous evening. Miller pointed out Love and directed defendant t o go after
him. Although he denied knowing defendant had a gun, or that he saw defendant
shoot Love, Miller testified defendant went over to where Love was standing.
Miller then heard a gunshot.
Kendrick testified he went to the club and waited outside in a car while
his cousin attempted to gain access to the club. As he sat in the parked car, he
saw defendant, who was a close friend he knew by the name "Face," standing
outside of the club. He saw defendant raise his arm and fire a gunshot. He
testified he saw the victim, Love, fall. Kendrick also explained that defendant
ran to a Honda Accord and got in the vehicle. As the Accord pulled away, it
A-4620-16T1
6
stopped by Kendrick's car, at which time defendant returned Kendrick's mother's
cellphone he had borrowed the previous evening. Kendrick testified defendant
gave him a book bag the following day that contained the gun Kendrick had
given defendant. Kendrick said that in order to "help [defendant] out," he took
the book bag knowing it contained the gun used to murder Love.
The evidence also showed defendant made self-incriminatory admissions
to his fellow inmates during his pretrial detention. Defendant admitted to four
witnesses that he shot Love. He told a witness that once he arrived at the club,
a friend pointed out Love and he shot him. He told two witnesses that he
immediately fled from the club after shooting Love, and attempted to establish
an alibi by quickly traveling to a gas station he knew had surveillance cameras.
Defendant presented evidence showing his presence at a gas station, his
movements amongst various locations and cellphone data to establish he was
not at the Ten's Enough club when Love was murdered.
The jury was unable to reach a verdict on the charges that defendant
murdered Love and possessed a handgun for unlawful purposes. The jury
convicted defendant of conspiracy to commit Love's murder. Defendant was
also convicted of the three counts of conspiracy to murder three potential
A-4620-16T1
7
prosecution witnesses and three counts of conspiracy to commit witness
retaliation charged in the second indictment.
On the conviction for first-degree conspiracy to commit murder, the court
sentenced defendant to a twenty-five-year discretionary extended term, N.J.S.A.
2C:44-3(a), subject to the requirements of the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The court merged defendant's convictions for the three
counts of conspiracy to commit witness retaliation with his convictions for the
three counts of conspiracy to commit the murders of the witnesses, and imposed
an aggregate fifteen-year sentence subject to NERA, to be served consecutive to
the sentence on his conviction for conspiracy to murder Love.
We affirmed defendant's conviction and sentence on direct appeal. Singer,
slip op. at 37. The Supreme Court denied defendant's petition for certification.
State v. Singer, 224 N.J. 123 (2016).
In March 2016, defendant filed a verified pro se PCR petition, asserting
the following facts in support of his claim:
[inconsistency] within the witness
statements, evidentiary hearing,
conspiracy doesn't support the conviction,
there wasn't any evidence of a conspiracy
to commit murder to sustain a conviction.
Ineffective assistance of counsel claims, on
post-conviction review, many other
aspect[s] of my pre-trial proceedings in
A-4620-16T1
8
which my previous representation
neglected to protect my rights and to
submit proper motions, that would have
exonerated me.
Defendant's assigned PCR counsel filed an Amended Verified PCR
Petition pursuant to R. 3:22. Defendant argued that "trial and appellate counsel
were ineffective for the reasons set forth" in an accompanying brief. PCR
counsel's brief asserted trial counsel was ineffective by "failing to call favorable
witnesses" and by failing to argue defendant's convictions were against the
weight of the evidence. The brief also asserted defendant's appellate counsel
was ineffective because she did not claim on direct appeal that defendant's trial
counsel was ineffective by failing to call favorable witnesses and argue
defendant's convictions were against the weight of the evidence.
After hearing argument on defendant's PCR petition, the court issued a
written decision finding defendant failed to sustain his burden of establishing a
prima facie case that his trial and appellate counsels' performances were
deficient or that he suffered prejudice as a result of any of their purported errors.
The court entered an order denying the PCR petition without an evidentiary
hearing. This appeal followed.
Defendant's counsel presents the following arguments for our
consideration:
A-4620-16T1
9
POINT ONE
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEYS RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
INVESTIGATE AND PRESENT AN ADEQUATE
ALIBI DEFENSE OR RAISE THESE ISSUES ON
DIRECT APPEAL.
POINT TWO
[DEFENDANT'S] CONVICTION FOR
CONSPIRACY TO COMMIT MURDER IS AGAINST
THE WEIGHT OF THE EVIDENCE.
In his pro se letter brief, defendant makes the following arguments:
POINT I
[DEFENDANT'S] REMEDIAL ASSISTANCE OF
COUNSEL AT THE TRIAL [LED] TO A GRAVE
DENIAL OF THE U.S. CONST. 6TH AMENDMENT
& N.J. CONST. ART. 1, PARA. 9 & 10, TO A FAIR
TRIAL TO PROVE HIS ACTUAL INNOCENCE.
POINT II
[DEFENDANT'S] INITIAL APPELLATE COUNSEL
AND THE PCR COUNSEL REMEDIAL
ASSISTANCE OF COUNSEL AS WELL [DENIED]
APPELLANT THE RIGHT TO FAIRLY AND
ADEQUATELY CHALLENGE THE CRIMINAL
ALLEGATIONS TO PROVE HIS ACTUAL
INNOCENCE CONTRARY TO THE U.S. CONST.
6TH AMENDMENT & N.J. CONST. ART. 1, 9 & 10.
A-4620-16T1
10
A. NEW JERSEY CITIZEN WAS DENIED THEIR
[sic] U.S. CONST. 1ST. AMENDMENT RIGHT TO
WITNESSING [DEFENDANT] TO HAVE A FAIR
PUBLIC TRIAL, WHERE THE PUBLIC CITIZEN OF
NEW JERSEY WOULD CONTINUE TO MAINTAIN
CONFIDENCE AND INTEGRITY IN THE JUDICIAL
SYSTEM PROCESS.
POINT III
[THE] PROSECUTOR KNOWINGLY USED
PERJURED TESTIMONY TO OBTAIN
CONVICTION DENYING DEFENDANT'S RIGHT
TO A FAIR TRIAL, DUE PROCESS AND IN
VIOLATION OF THE 5TH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
A. PROSECUTORIAL MISCONDUCT.
B. INSUFFICIENT EVIDENCE.
POINT IV
[THE] JURY'S VERDICT AND [DEFENDANT'S]
CONVICTION [WERE] AGAINST THE WEIGHT OF
THE EVIDENCE IN VIOLATION OF THE
FOURTEENTH AMENDMENT.
POINT V
[THE] JUDGE FAILED DUTY AS IMPARTIAL
TRIBUNAL VIOLATING DEFENDANT'S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL.
A. Actual Killer Given Deal.
B. Proof of Fact.
A-4620-16T1
11
[POINT VI]
CONSTITUTIONAL ERROR AND WRONGFUL
CONVICTION
A. The Lack of Full Disclosure.
B. The Investigating Detective Imputed Knowledge to
Prosecutor.
C. The Materiality Of The Undisclosed Evidence.
D. The Prejudice Of The Non-Disclosure.
E. The Prosecutorial Misconduct.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies
to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has
not been held, it is within our authority "to conduct a de novo review of both the
factual findings and legal conclusions of the PCR court." Id. at 421. That
standard applies here.
The Sixth Amendment to the United States Constitution and Article I ,
Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a
criminal proceeding has the right to the assistance of counsel in his defense. The
A-4620-16T1
12
right to counsel includes "the right to the effective assistance of counsel." State
v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)).
In Strickland, the Court established a two-part test, later adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a
defendant has been deprived of the effective assistance of counsel. Strickland,
466 U.S. at 687. Under the first prong of the Strickland standard, a petitioner
must show that counsel's performance was deficient. It must be demonstrated
that counsel's handling of the matter "fell below an objective standard of
reasonableness," id. at 688, and that "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment," id. at 687.
Under the second prong of the Strickland standard, a defendant "must
show that the deficient performance prejudiced the defense." Ibid. A defendant
must demonstrate a "reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694. A
petitioner must establish both prongs of the Strickland standard in order to
obtain a reversal of the challenged conviction. Id. at 687; Nash, 212 N.J. at 542;
A-4620-16T1
13
Fritz, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard
requires the denial of a petition for PCR. Strickland, 466 U.S. at 700.
Defendant first contends the PCR court erred by failing to find that he
established a prima facie claim of ineffective assistance of trial counsel based
on counsel's failure to conduct an investigation and concomitant failure to
present an adequate alibi defense. We find no merit to defendant's claim.
"Bald assertions" are insufficient to sustain a defendant's burden of
establishing a prima facie case of ineffective assistance under the Strickland
standard. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). PCR
petitions must be "accompanied by an affidavit or certification by defendant, or
by others, setting forth with particularity," State v. Jones, 219 N.J. 298, 312
(2014), "facts sufficient to demonstrate counsel's alleged substandard
performance," ibid. (quoting State v. Porter, 216 N.J. 343, 355 (2013)).
Although a "[f]ailure to investigate an alibi defense is a serious deficiency that
can result in the reversal of a conviction," Porter, 216 N.J. 343, 353 (2013),
where, as here, a defendant "claims his trial attorney inadequately investigated
his case, he must assert the facts that an investigation would have revealed ,
supported by affidavits or certifications based upon the personal knowledge of
A-4620-16T1
14
the affiant or the person making the certification," ibid. (quoting Cummings,
321 N.J. Super. at 170).
The PCR court correctly determined defendant failed to establish a prima
facie case that his trial counsel was ineffective by failing to conduct an adequate
investigation and call alibi witnesses. Defendant's initial and amended PCR
petitions, and other submissions, are untethered to any affidavits or
certifications describing what the investigation he claims his trial counsel failed
to complete would have revealed or the manner in which particular witnesses
would have supported an alibi defense. 3 Cf. State v. Pierre, 223 N.J. 560, 583
(2015) (finding trial counsel's performance deficient where "counsel chose to
forego evidence that could have reinforced [the defendant's] alibi"). Defendant
3
Defendant's initial and amended petitions do not identify the purported alibi
witnesses trial counsel allegedly failed to investigate or call as witnesses.
Defendant's appendix includes a letter from defendant to the trial court
requesting that thirteen named individuals be subpoenaed to testify at his trial ,
and in his pro se brief to the PCR court defendant renamed five of the individuals
and claimed trial counsel was ineffective by failing to interview them.
Defendant's PCR petitions and other submissions, however, do not include any
affidavits or certifications based on personal knowledge describing the
testimony of any putative alibi witnesses, demonstrating their testimony would
have supported an alibi defense or establishing a reasonable probability that but
for trial counsel's failure to interview or call them as witnesses, the result of
defendant's trial would have been different.
A-4620-16T1
15
therefore did not sustain his burden of establishing that his trial counsel 's
performance was deficient.
The record is similarly devoid of any competent evidence establishing a
reasonable probability that but for trial counsel's purported failure to investigate
and call alibi witnesses the result of defendant's trial would have been different.
Indeed, defendant does not provide any evidence concerning the testimony of
any purported alibi witness his counsel failed to call at trial or establishi ng a
reasonable probability the testimony would have changed the outcome of
defendant's trial. A defendant may show prejudice by his trial counsel's failure
to conduct an investigation where he or she presents evidence showing the
testimony that would have been offered by an alibi witness would "have given
rise to reasonable doubt about [the] defendant's guilt." Id. at 588. Defendant
makes no such showing here. 4
4
Contrary to defendant's conclusory assertions, the record shows trial counsel
asserted an alibi defense and presented evidence supporting the defense through
his cross-examination of the State's witnesses and presentation of defense
witnesses and evidence detailing defendant's alleged movements and locations
before, during and after Love's murder. Defendant presents no competent
evidence showing that any investigation beyond that which supported counsel 's
presentation of the alibi defense at trial would have yielded witnesses or
evidence further supporting the defense.
A-4620-16T1
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Defendant also asserts his trial counsel was ineffective by failing to obtain
a video recording from a convenience store that he contends would support his
alleged alibi that he was at the store when Love was murdered. The argument
is based on the false premise that the recording was not recovered from the store.
In fact, the police obtained a disc from the convenience store but the disc did
not contain a recording. In support of defendant's PCR petition, he fails to
present any competent evidence that any error by his trial counsel resulted in the
recovery of the blank disc or that, if his counsel had not allegedly erred in failing
to conduct an investigation, counsel would have recovered a disc with a
recording from the convenience store supporting defendant's putative alibi
defense.
The record shows defendant failed to sustain his burden under both prongs
of the Strickland standard on his claim that trial counsel was ineffective by
failing to conduct an adequate investigation and failing to call alibi witnesses at
trial. Because defendant did not satisfy either prong of the Strickland standard,
the PCR court correctly denied his petition, Strickland, 466 U.S. at 700, without
an evidentiary hearing, Porter, 216 N.J. at 355, on his ineffective assistance of
trial counsel claim.
A-4620-16T1
17
We also reject defendant's contention the PCR court erred by denying his
claim that his appellate counsel was ineffective. Defendant argues appellate
counsel's performance was deficient because she failed to argue on direct appeal
that trial counsel was ineffective by failing to conduct an adequate investigation
and failing to call alibi witnesses.
Defendant is entitled to the effective assistance of appellate counsel, but
"appellate counsel does not have a constitutional duty to raise every
nonfrivolous issue requested by the defendant." State v. Morrison, 215 N.J.
Super. 540, 549 (App. Div.) (citing Jones v. Barnes, 463 U.S. 745, 754 (1983));
see also State v. Gaither, 396 N.J. Super. 508, 516 (App. Div. 2007) (holding
that appellate counsel is not "required to advance every claim insisted upon by
a client on appeal"). Defendant's appellate counsel's performance was not
deficient by failing to argue that trial counsel failed to conduct an adequate
investigation and call alibi witnesses because, as noted, those claims concerning
trial counsel lack merit. A criminal defendant's counsel is not ineffective by
failing to raise a meritless legal argument on the defendant's behalf. State v.
Worlock, 117 N.J. 596, 625 (1990).
Moreover, claims of ineffective assistance of trial counsel do not
ordinarily find an appropriate remedy on direct appeal. State v. Preciose, 129
A-4620-16T1
18 N.J. 451, 460 (1992). Thus, defendant's appellate counsel was not deficient by
failing to argue on direct appeal that trial counsel was ineffective. Under the
circumstances presented here, appellate counsel properly reserved the claim for
post-conviction relief. See State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.
2007) (finding "ineffective assistance of counsel claims are best left to post-
conviction review").
Defendant also argues he is entitled to post-conviction relief because his
conviction for conspiracy to commit murder is against the weight of the
evidence. We reject the argument because it could have been raised on direct
appeal. See State v. Goodwin, 173 N.J. 583, 593 (2002) (finding that under Rule
3:22-4, a defendant may not assert a claim in a PCR proceeding that could have
been raised on direct appeal); see also State v. McQuaid, 147 N.J. 464, 483
(1997) (finding that PCR "is not used to challenge the sufficiency of evidence
used to convict a defendant"); see also State v. Morales, 120 N.J. Super. 197,
200 (App. Div. 1972) (holding a "claim that the verdict was against the weight
of the evidence can be raised only on a direct appeal; it is not a ground for post-
conviction relief").5
5
Any argument that a verdict is against the weight of the evidence may not be
raised on direct appeal unless the defendant first moved in the trial court for a
A-4620-16T1
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In addition, defendant makes no showing that his assertion of the claim
for the first time in his PCR petition falls within one of the exceptions under
Rule 3:22-4(a). He does not argue or establish that the grounds for relief, the
alleged lack of evidence supporting his conviction for conspiracy to commit
murder, could not have been reasonably raised on direct appeal, R. 3:22-4(a)(1),
or that denial of his request for relief would be contrary to a new rule of
constitutional law, R. 3:22-4(a)(3).
Defendant also fails to demonstrate that enforcing the Rule 3:22-4 bar
"would result in fundamental injustice." R. 3:22-4(a)(2). "To succeed on a
fundamental-injustice claim, the [defendant] must make '"some showing"' that
an error or violation '"played a role in the determination of guilt."'" Nash, 212 N.J. at 547 (citations omitted).
Defendant cannot establish that enforcement of the Rule 3:22-4 bar would
result in a fundamental injustice because there was ample evidence supporting
his conviction for conspiracy to commit murder. See N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:11-3. Defendant's claim his conviction was against the weight of
new trial on that basis. State v. Fierro, 438 N.J. Super. 517, 530 (App. Div.
2015) (citing R. 2:10-1). Defendant's trial counsel made a motion for a new trial
and argued his conviction for conspiring to murder Love was against the weight
of the evidence. The trial court denied the motion prior to defendant 's
sentencing.
A-4620-16T1
20
the evidence is based on the premise that he could not logically be convicted of
conspiracy to commit murder because the jury was unable to reach a verdict on
the charges that he murdered Love and possessed a weapon for unlawful
purposes. However, consistency of verdicts in a criminal case is not necessary
because each charge in an indictment is considered separately, and "[a] jury
verdict, even an inconsistent one, is upheld on appeal if the evidence is sufficient
to establish guilt on the count of conviction." Fierro, 438 N.J. Super. at 528-29.
Thus, any perceived inconsistency between the jury's inability to reach a verdict
on the murder and gun possession charge and defendant's conviction for
conspiracy to commit the murder is of no moment. In addition, the record
supports the PCR court's determination there was evidence supporting the jury's
determination defendant conspired with Miller to commit Love's murder,6 and
defendant does not demonstrate otherwise. We therefore discern no basis to
conclude that application of the Rule 3:22-4 bar to defendant's claim his
6
The evidence included testimony establishing Miller requested that defendant
come to the Ten's Enough club to provide Miller with "back up," defendant
brought the handgun used to murder Love to the Ten's Enough club and was told
by Miller to "take care" of Love immediately before Love was shot, defendant
was identified by five eyewitnesses as being present when Love was shot,
defendant fled the scene of the shooting with the handgun, and defendant
admitted his involvement in Love's murder.
A-4620-16T1
21
conviction for conspiracy to commit Love's murder is against the weight of the
evidence will result in a fundamental injustice.
We have carefully considered the arguments contained in defendant's pro
se appellate brief, and they are without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). We add only that defendant's arguments are
based on inaccurate statements of legal principles, a misapplication of legal
principles, allegations of fact that are either unsupported by competent evidence
or contradicted by the record, or are otherwise barred under Rule 3:22-4.
Affirmed.
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22
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