STATE OF NEW JERSEY v. HAROLD E. DUFFUS

NOT FOR PUBLICATION WITHOUT THE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-1573-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HAROLD E. DUFFUS, a/k/a
ROCCO DUFFES, ROCCO
DUFFUS, HAROLD POCCHIO,
and GARY SHOEMAN,

     Defendant-Appellant.
___________________________

                    Submitted January 8, 2019 – Decided January 16, 2019

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 11-12-
                    1939.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Richard Sparaco, 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).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Shortly after noontime, August 20, 2011, Home Depot loss prevention

supervisor Christopher Decker became suspicious of defendant as he proceeded

through the store's aisles. He followed defendant for a while and eventually,

from a roughly thirty- to forty-foot distance, watched as defendant removed a

drill from its carton using a boxcutter he took from his pocket; Decker then

watched as defendant removed a mailbox from its carton and placed the drill in

the empty mailbox carton, retaped it so "it looked like it was never opened," and

proceeded to checkout. Decker followed defendant to the self-checkout register,

where defendant paid $26.72 for what purported to be a mailbox. Defendant

then left through the store's main exit.     Decker followed and approached

defendant in the parking lot. Decker identified himself and asked defendant to

accompany him back into the store.          When defendant "became verbally

combative," Decker applied an "arm escort," a technique he learned in his

training, to bring defendant back into the store. When the physical confrontation

continued, defendant said, "if you don't let me go I'm going to . . . cut you up."

Concerned for his safety, Decker grabbed defendant's arm as he was pulling the

boxcutter out of his pocket and squeezed defendant's wrist hard enough to get


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him to release the boxcutter. Once escorted by Decker into an inner officer,

defendant stated he was "a heroin addict and . . . need[ed] the money."

Eventually police arrived and placed defendant under arrest.

      Defendant was charged with first-degree robbery,  N.J.S.A. 2C:15-1, and

other related offenses. At the conclusion of a three-day trial in May 2012,

defendant was found guilty of first-degree robbery, third-degree possession of a

weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(d), fourth-degree unlawful

possession of a weapon under circumstances not appropriate for its lawful uses,

 N.J.S.A. 2C:39-5(d), and disorderly-persons shoplifting,  N.J.S.A. 2C:20-3. The

judge granted the State's motion to sentence defendant to a discretionary

extended term as a persistent offender, and in July 2012, the judge imposed a

fifteen-year prison term, subject to an eighty-five percent period of parole

ineligibility, on the robbery conviction. The judge imposed lesser concurrent

terms on those other convictions that did not merge into the robbery conviction.

      Defendant appealed, arguing: (1) his statements to Decker were coerced

and should not have been admitted; (2) the judge erred in refusing to redact his

statement regarding his reference to drug use; (3) the judge erred by refusing to

instruct the jury on self-defense; (4) the judge interfered in the presentation of

the case; and (5) the sentence was manifestly excessive. We rejected these


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arguments and affirmed, State v. Duffus, No. A-2074-12 (App. Div. Apr. 23,

2015), and the Supreme Court denied defendant's petition for certification,  223 N.J. 556 (2015).

      In August 2015, defendant filed a post-conviction relief (PCR) petition,

arguing the ineffectiveness of his trial attorney because, in defendant's view, the

attorney: should have conducted a more thorough investigation; failed to

interview another loss prevention officer; should have procured a more

favorable plea offer; should have made a more effective opening statement;

should have pursued the application of an adverse inference due to the State's

failure to call the other loss prevention officer; failed to effectively cross-

examine the witnesses; should have moved to dismiss because evidence was not

preserved; failed to make an adequate closing statement; and failed to

adequately advocate for him at sentencing.         Defendant also asserted that

appellate counsel was ineffective for failing to present all these matters in

prosecuting defendant's direct appeal. By way of his November 16, 2016 written

decision, the PCR judge concluded that an evidentiary hearing was warranted.

      An evidentiary hearing, at which defendant's trial attorney testified, took

place on July 24, 2017. The PCR judge provided a written decision, containing




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his findings of fact and conclusions of law, on August 29, 2017. The judge

rejected all defendant's arguments and denied post-conviction relief.

       Defendant appeals, arguing in a single point:

              DEFENDANT'S PCR PETITION SHOULD HAVE
              BEEN GRANTED BECAUSE TRIAL COUNSEL
              MISUNDERSTOOD THE DISCOVERY RULES,
              ERRONEOUSLY BELIEVED THAT LOCATING
              AND INTERVIEWING AN ESSENTIAL WITNESS
              WOULD       PREJUDICE   THE  DEFENDANT,
              MISUNDERSTOOD STATE V. CLAWANS [1] AND
              R. 3:13-3, AND PURPOSELY REFRAINED FROM
              CONDUCTING         ESSENTIAL    PRETRIAL
              INVESTIGATION, THEREBY PERMANENTLY
              DENYING DEFENDANT THE RIGHT TO A FAIR
              TRIAL.

Defendant also filed a pro se supplemental brief in which he seeks our

consideration of all the other issues – not pursued by PCR appellate counsel here

– that he raised in the PCR court. We find insufficient merit in the arguments

of PCR appellate counsel and in the arguments incorporated by defendant's pro

se supplemental brief to warrant further discussion in a written opinion. R. 2:11-

3(e)(2).

       We add only a few comments about much of what defendant argues here:

the alleged "missing witness," Michael Rivera, another Home Depot loss



1
    State v. Clawans,  38 N.J. 162 (1962).
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prevention officer. After the evidentiary hearing, the PCR judge found that

counsel properly investigated and defended the matter, particularly as it relates

to Rivera. First, as the judge found, defendant never mentioned to him this other

potential witness. The matter was prosecuted on the basis of Decker's testimony

and his observations and interactions with defendant. And, although Rivera may

have witnessed some parts of the events, the PCR judge recognized that the trial

attorney tactically defended the matter by suggesting that Decker was willfully

dishonest and that Decker also improperly handled or secured relevant

evidence.2 As the judge observed:

            When [defense counsel] cross-examined Mr. Decker,
            Mr. Decker testified that he had watched the video of
            the registers but no one else had seen the video. The
            video was unable to be produced for trial. Testimony
            was also elicited that Decker was formerly a police
            officer and was currently employed as a loss prevention
            officer for Home Depot. All of the testimony combined
            with the lack of evidence was part of trial counsel's
            strategy for the jury to infer that . . . Decker was a bad
            police officer resulting in his career change and now
            was a bad loss prevention officer.

            Moreover, [defense counsel] testified [at the PCR
            hearing] that . . . Decker was the only individual who
            had alleged to have seen the robbery and all the
            evidence was either not preserved or never produced.
            Calling . . . Rivera, would not only be unhelpful to the

2
  For example, in-store video was not preserved, and the empty drill box was
not retained.
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            defense . . . but could have also possibly hurt the
            defendant. Although the [d]efense was unsuccessful at
            obtaining a Clawans charge against the State for not
            calling . . . Rivera, [defense counsel] defended the case
            effectively.

We also see no ground for permitting a Clawans charge regarding the State's

failure to call Rivera as a witness. To be sure, under the circumstances, such a

charge would have been appropriate if the State had called Rivera and not

Decker, but not the other way around.

      Affirmed.




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