STATE OF NEW JERSEY v. STEVEN MCCOY

NOT FOR PUBLICATION WITHOUT THE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-5366-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

STEVEN MCCOY, a/k/a KUKO, K, AMOS
CRUDUP, QUAADIR CRUDUP, STEVEN
G. MCCOY, QUAADIR ROYAL, and RED,

     Defendant-Appellant.
_________________________________

              Submitted May 23, 2018 — Decided June 12, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment Nos.
              10-01-0066 and 10-02-0153.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kevin G. Brynes, Designated
              Counsel, on the brief).

              Camelia A. Valdes, Passaic County Prosecutor,
              attorney for respondent (Christopher W. Hsieh,
              Chief Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Steven McCoy appeals from the July 19, 2017 order

denying his application for post-conviction relief (PCR) without
an evidentiary hearing.        Defendant pled guilty in connection with

two early morning shootings five days apart in 2009.                     Both victims

were seated in a car when shot.             Although originally charged with

murder     and    attempted   murder,       he    pled   guilty     to   first-degree

aggravated manslaughter, 
N.J.S.A. 2C:11-4(a)(1), and second-degree

aggravated       assault,   
N.J.S.A.    2C:12-1(b)(1).            He     received   the

maximum     sentence    permissible         under     the    plea      agreement:     an

aggregate sentence of thirty years subject to an 85% parole

disqualifier pursuant to the No Early Release Act, 
N.J.S.A. 2C:43-

7.2.     Defendant argues that his defense attorney was ineffective

by   not   arguing     thoroughly      in       mitigation   at     sentencing,     not

providing defendant with the discovery and not negotiating a more

favorable plea agreement. We affirm substantially for the thorough

and well-substantiated reasons placed on the record by Presiding

Judge Marilyn C. Clark on July 19, 2017.

       After defendant was sentenced, he appealed the length of the

sentence.        We affirmed by order on September 28, 2012.1                 In this

appeal, defendant argues:


             POINT I: THE DEFENDANT WAS DENIED THE RIGHT
             TO   EFFECTIVE  ASSISTANCE   OF  COUNSEL AS
             GUARANTEED BY THE SIXTH AMENDMENT TO THE
             UNITED STATES CONSTITUTION AND ART. 1, PAR.
             10 OF THE NEW JERSEY CONSTITUTION.

1
   We heard the matter at a sentence only argument panel pursuant
to Rule 2:9-11.

                                            2                                 A-5366-16T1
           A. TRIAL COUNSEL FAILED TO INVESTIGATE THE
           FACTS AND PROVIDE DISCOVERY TO THE DEFENDANT,
           THEREBY DEPRIVING HIM OF HIS CONSTITUTIONAL
           RIGHT TO PRESENT A COMPLETE DEFENSE.

           B. THE PLEA AGREEMENT IS NULL AND VOID           BECAUSE
           THE DEFENDANT WAS PRESSURED BY TRIAL             COUNSEL
           TO ENTER A GUILTY PLEA WITHOUT                    HAVING
           SUFFICIENT KNOWLEDGE ABOUT THE FACTS              OF HIS
           CASE.

           C. TRIAL COUNSEL FAILED TO MAKE A COMPLETE
           SENTENCING ARGUMENT AND RECORD, THEREBY
           DEPRIVING THE COURT OF INFORMATION RELEVANT
           TO THE SENTENCING DECISION.

           POINT II: THE DEFENDANT IS ENTITLED TO AN
           EVIDENTIARY HEARING.

      "Post-conviction   relief   is       New   Jersey's    analogue   to    the

federal writ of habeas corpus."        State v. Preciose, 
129 N.J. 451,

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled

to post-conviction relief if there was a "[s]ubstantial denial in

the   conviction   proceedings    of       defendant's      rights   under    the

Constitution of the United States or the Constitution or laws of

the State of New Jersey . . . ."           "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, 
129 N.J. at 459 (citations omitted).               "To sustain that

burden, specific facts" that "provide the court with an adequate

basis on which to rest its decision" must be articulated.                  State

v. Mitchell, 
126 N.J. 565, 579 (1992).



                                       3                                A-5366-16T1
       Claims of constitutionally ineffective assistance of counsel

are well-suited for post-conviction review.    See R. 3:22-4(a)(2);

Preciose, 
129 N.J. at 460.   In determining whether a defendant is

entitled to relief on the basis of ineffective assistance of

counsel, New Jersey courts apply the two-prong test articulated

by the United States Supreme Court in Strickland v. Washington,


466 U.S. 668, 687 (1984), and United States v. Cronic, 
466 U.S. 648, 658-60 (1984). Preciose, 
129 N.J. at 463; see State v. Fritz,


105 N.J. 42, 49-50 (1987).

       Under the first prong of the Strickland test, a "defendant

must show that counsel's performance was deficient."   Strickland,


466 U.S.  at 687.       Under the second prong, 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.

       Defendant acknowledged under oath at his guilty plea hearing

that his defense lawyer had reviewed the "State's evidence" with

him.    He also expressed his satisfaction with counsel.   As Judge

Clark noted, at the age of thirty-three, defendant has already

accumulated an extensive criminal record.

       Defense counsel mentioned defendant's four children in his

sentencing argument.    In spite of defense counsel's efforts, the

sentencing court found no mitigating factors and three aggravating

                                  4                        A-5366-16T1
factors.    See 
N.J.S.A. 2C:44-1.        Judge Clark further discussed how

defendant's claim that he shot the victims out of fear due to gang

involvement was not a mitigating factor, nor would it have changed

the sentence imposed.      A PCR evidentiary hearing was not necessary

under these circumstances.       See Preciose, 
129 N.J. at 462 (holding

evidentiary     hearings   are   necessary        only   "if     a    defendant   has

presented   a   prima   facie    claim       in   support   of       post-conviction

belief").

     Affirmed.




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