STATE OF NEW JERSEY v. LAWRENCE D. THOMAS, JR

NOT FOR PUBLICATION WITHOUT THE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-2763-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAWRENCE D. THOMAS, JR.,

     Defendant-Appellant.
______________________________

                    Submitted March 11, 2019 – Decided March 21, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 12-01-0191.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Louis H. Miron, Designated Counsel, on the
                    brief).

                    Dennis Calo, Acting Bergen County Prosecutor,
                    attorney for respondent (Marky A. Suazo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant appeals from a July 24, 2017 order denying his petition for

post-conviction relief (PCR). Defendant contends that his trial counsel rendered

ineffective assistance by failing to call "many" witnesses and by "pressur[ing]"

defendant not to testify. 1 We disagree and affirm.

      On appeal, defendant argues:

            POINT I

            THE PCR COURT ERRED IN DENYING
            [DEFENDANT'S] PCR PETITION BECAUSE THE
            INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
            DEPRIVED [DEFENDANT] OF A FAIR TRIAL AND
            RENDERED    THE    JURY'S  VERDICT    AS
            FUNDAMENTALLY UNRELIABLE.

            POINT II

            THE PCR COURT ERRED IN DENYING
            [DEFENDANT'S] PCR PETITION WITHOUT
            HAVING CONDUCTED AN EVIDENTIARY
            HEARING TO ADDRESS [DEFENDANT'S] CLAIMS
            FOR WHICH HE ESTABLISHED A PRIMA FACIE
            CASE IN SUPPORT OF THE INEFFECTIVE
            ASSISTANCE OF COUNSEL.

      We conclude that defendant's contentions lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the



1
  We affirmed defendant's drug and weapons convictions, State v. Thomas, No.
A-3735-12 (App. Div. Jan. 13, 2015), and the Supreme Court denied defendant's
petition for certification.
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reasons set forth by Judge Christopher R. Kazlau in his well-reasoned and

thorough oral decision spanning twenty-nine pages in the transcript dated July

10, 2017. We add the following brief remarks.

      A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," State v. Marshall,  148 N.J.
 89, 158 (1997) (first alteration in original) (quoting State v. Preciose,  129 N.J.
 451, 462 (1992)), meaning that a "defendant must demonstrate a reasonable

likelihood that his . . . claim will ultimately succeed on the merits." Ibid. For a

defendant to obtain relief based on ineffective assistance grounds, he is obliged

to show not only the particular manner in which counsel's performance was

deficient, but also that the deficiency prejudiced his right to a fair trial.

Strickland v. Washington,  466 U.S. 668, 687 (1984); accord State v. Fritz,  105 N.J. 42, 58 (1987).     We conclude that defendant failed to demonstrate a

reasonable likelihood that his PCR claim will ultimately succeed on the merits.

And we conclude further that defendant has failed to satisfy either prong of

Strickland.

      Defendant's trial counsel called two witnesses: one of defendant's sisters

(the sister) and defendant's lifelong friend (the friend), who was arrested wit h

defendant on the date of the incident. The PCR certifications of his other sister,


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mother, and other friend assert that defendant did not live at the residence, which

is what the sister and friend said at trial. Thus, they would not have added any

new facts. Instead, they would have reiterated the testimony of the sister and

the friend. Even if trial counsel should have called the three witnesses – which

is not the case – there is no "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Strickland,  466 U.S.  at 694.

       Contrary to defendant's contention, trial counsel did not dissuade him

from testifying. During the trial, the judge questioned defendant on the record

to determine whether defendant was knowingly and voluntarily waiving his right

to testify:

              Judge: You understand that you have the absolute right
              to testify or not to testify in any [c]ourt proceeding?

              Defendant: I understand.

              Judge: Okay. Now, [trial counsel] has provided legal
              advice to you, but ultimately the decision is yours to
              make. You could testify or not testify. It has been
              explained to you that once you are on the stand any
              prior convictions can be used to impeach your
              credibility.

              Defendant: Yes, sir.




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            Judge: Understood? And as a result of this, this has
            become part of what you might call a trial strategy for
            you not to testify?

            Defendant: Yes, sir.

            Judge: In consultation with [trial counsel] you have
            made this decision?

            Defendant: Yes, I understand.

Defendant conceded that the decision about whether to testify was solely his and

that he knew if he testified, his prior convictions would be evidential. We

conclude that defendant's election not to testify was knowing, voluntary, and

without any evidence of pressure or coercion.

      Affirmed.




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