STATE OF NEW JERSEY v. COBY T. RICHARDSON
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-2668-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COBY T. RICHARDSON, a/k/a
COLBY RICHARDSON, and
TIMOTHY RICHARDSON,
Defendant-Appellant.
__________________________
Submitted February 12, 2020 – Decided March 8, 2020
Before Judge Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 12-04-1144.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Vincent Molitor, Designated Counsel,
on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor (Stephen Anton Pogany, Special Deputy
Attorney General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant appeals from the December 11, 2018 Law Division order
denying his first petition for post-conviction relief (PCR) without an evidentiary
hearing. On appeal, defendant raises the following single contention for our
consideration:
THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
WITHOUT AN EVIDENTIARY HEARING.
We disagree and affirm for the reasons expressed in Judge John I. Gizzo's
comprehensive and well-reasoned written opinion.
We incorporate herein the facts set forth in State v. Richardson, No. A-
4021-14 (App. Div. June 23, 2017) (slip op. at 2, 5, 39), certif. denied, 231 N.J.
520 (2017), wherein we affirmed defendant's 2015 convictions following a jury
trial, as well as the imposition of an aggregate seventeen-year sentence, with
six-and-one-half-years of parole ineligibility, for receiving stolen property,
resisting arrest and weapons possession offenses.1 The convictions stemmed
from a July 21, 2011 "9-1-1 call from an unidentified woman, reporting armed
men, wearing gloves, in a red vehicle in the area of 600 Irvine Turner Boulevard"
1
Defendant was acquitted of eluding police and possession of hollow point
bullets.
A-2668-18T1
2
in Newark. Id. at 5. The report led to a police pursuit of a vehicle matching the
description, and the ultimate apprehension of defendant and his brother, who
"fled" from the vehicle "on foot" just prior to the vehicle striking "a parked car
and a tree." Ibid.
The two officers who first responded to the police dispatch, Jimmy Rios
and Steven Maresca, identified defendant as the driver of the vehicle. A
subsequent examination of the vehicle revealed a damaged ignition, and a search
uncovered a "handgun, a rifle, a high capacity magazine, and a screwdriver." Id.
at 6-7. "Police also recovered gloves, bandanas, cellphones, and a cap at the
scene." Id. at 7. A bandana was linked to defendant by DNA evidence, which
was challenged by a defense expert forensic scientist.
During the nine-day trial, the State produced "the dispatch officer" and
"the 9-1-1 operator," as well as several other police and civilian witnesses, and
introduced "various documents including transcripts of the 9-1-1 call and radio
dispatches." Ibid. Defendant testified at trial, essentially claiming mistaken
identity. We previously recounted his testimony as follows:
[Defendant] testified he worked as a driver for his
brother's roadside assistance company, which
responded to service calls for customers of companies
such as AAA and All America. On July 21, 2011, at
approximately 3 p.m., [his brother] arrived in a
company van to take [defendant] to work. [Defendant]
A-2668-18T1
3
was to start work at 5 p.m., when [his brother's] shift
ended. Sometime after 4 p.m., the van overheated so
[his brother] took it for repair at a local mechanic shop.
While the two waited, they walked to a nearby
neighborhood . . . because [defendant] wanted to buy
marijuana.
At some point, [his brother] separated from
[defendant] because he desired to purchase Percocet.
After his transaction was completed, [defendant]
emerged from an alleyway and saw police. He became
nervous, as he just purchased marijuana, so he ran. A
police officer, searching on foot, saw [defendant]
hiding behind a bush and arrested him. . . . Also he
admitted he tossed the marijuana during the chase and
lost his bandana. [Defendant] denied he was driving a
red Ford Taurus or that he possessed guns.
[Id. at 7-8.]
His brother, who was also charged and tried jointly with defendant, gave similar
testimony.
In his timely PCR petition, defendant certified his "trial attorney was
ineffective . . . in failing to consult with [him] regarding trial strategy."
Specifically, defendant averred his attorney "fail[ed] to contact the [9-1-1] caller
and interview her as to her observations." Defendant asserted "[t]he caller's
telephone number was provided, and [he] requested" his attorney to "contact"
her "several times . . . but he refused." According to defendant, because the
caller never "provide[d] the race of the individuals she saw, and . . . never
A-2668-18T1
4
mentioned dreadlocks, which would have been a distinguishing feature," if his
attorney had contacted her, she "would have exculpated [him]."
Defendant also asserted his attorney "refused" to "cross-examine" Rios on
a "critical" discrepancy in his testimony. According to defendant, although Rios
stated at trial that "the perpetrator had dreadlocks, . . . he failed to communicate
such to dispatch" and "only added dreadlocks into his police report after the
fact." Defendant averred "[t]his omission would have illustrated to the jury that
the officer was lying about [defendant's] involvement." Defendant made other
assertions to support his ineffective assistance of counsel claim (IAC) that are
not pertinent to this appeal.
Following oral argument, Judge Gizzo denied defendant's petition. In his
December 10, 2018 written decision, the judge reviewed the factual background
and procedural history of the case, applied the applicable legal principles, and
concluded defendant failed to establish a prima facie case of IAC. The judge
found defendant failed to show that either counsel's performance fell below the
objective standard of reasonableness set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome would have been different without
the purported deficient performance as required under the second prong of the
A-2668-18T1
5
Strickland/Fritz test. Additionally, in rejecting defendant's request for an
evidentiary hearing, the judge concluded defendant failed to present any issues
that could not be resolved by reference to the existing record.
In rejecting defendant's claim that trial counsel failed to effectively cross-
examine Rios, the judge stated
the trial record suggests otherwise. During his cross[-
]examination of . . . Rios, trial counsel proceeded to ask
the detective about the descriptions he provided to
dispatch regarding the suspect's identity. The record
further reveals that trial counsel questioned . . . Rios not
only about the suspect's hair type but also about the
suspect's weight, height, dress and race. This line of
questioning directly contradicts [d]efendant's claim.
The jury not only had the benefit of hearing
[d]efendant's trial attorney cross-examine . . . Rios on
the identification issues, but they also listened while
[his brother's] trial counsel conducted his own cross-
examination of . . . Rios on the identification issues.
As to defendant's claim regarding the 9-1-1 caller, the judge explained:
It seems apparent that trial counsel chose not to call the
witness but instead chose to use the State's failure to
call the 9-1-1 caller to raise reasonable doubt. Trial
counsel might have chosen not to call the 9-1-1 caller
as part of his trial strategy. Trial counsel integrated this
theory into his cross-examinations and closing
argument. Therefore, his choice not to call the 9-1-1
caller to testify is likely attributable to trial strategy.
For instance, in his closing argument, trial counsel
referred several times to the State's inability to call the
9-1-1 caller and continued to address her by her phone
number. Trial counsel extensively questioned [the
A-2668-18T1
6
police dispatcher] and the [9-1-1 operator] . . . on their
inability to ask the 9-1-1 caller about her identity.
Assuming that trial counsel's failure to call the 9-
1-1 witness amounted to deficient performance,
[d]efendant presents no evidence tending to show that
the 9-1-1 caller's testimony would have raised any
reasonable doubt. Defendant merely speculates that the
9-1-1 caller, if called to testify, would have somehow
provided testimony tending to change the outcome of
the trial. However, there is no such evidence to provide
as much as a reasonable inference into this claim. The
9-1-1 caller provided specific details about the car she
saw which later matched the car occupied by
[defendant's brother] and [d]efendant. It is clear from
the line of questioning that trial counsel was attempting
to cast doubt on the veracity of the State's witness,
which, in itself, amounts to trial strategy. Therefore,
trial counsel did not render ineffective assistance for
likely choosing not to call the 9-1-1 caller to testify as
part of his trial strategy or for choosing not to do so
because the 9-1-1 caller could have actually harmed
[d]efendant's case.
On appeal, defendant argues that, "[a]t the very least," he was entitled to
"an evidentiary hearing so [d]efendant's trial attorney can explain why he did
not attempt to locate the 9-1-1 caller and did not attempt to establish the flaws
in the State's witnesses' identification of [d]efendant." Merely raising a claim
for PCR does not entitle a defendant to relief or an evidentiary hearing. See
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial
courts should grant evidentiary hearings only if the defendant has presented a
A-2668-18T1
7
prima facie claim of IAC, material issues of disputed fact lie outside the record,
and resolution of those issues necessitates a hearing. R. 3:22-10(b); State v.
Porter, 216 N.J. 343, 355 (2013). A PCR court deciding whether to grant an
evidentiary hearing "should view the facts in the light most favorable to a
defendant . . . ." State v. Preciose, 129 N.J. 451, 463 (1992). However, "[a]
court shall not grant an evidentiary hearing" if "the defendant's allegations are
too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed, the defendant
"must do more than make bald assertions that he was denied the effective
assistance of counsel. He must allege facts sufficient to demonstrate counsel's
alleged substandard performance." Cummings, 321 N.J. Super. at 170.
In turn, "we review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing." State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding
an evidentiary hearing will not aid the court's analysis of whether the defendant
is entitled to post-conviction relief, . . . then an evidentiary hearing need not be
granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89,
158 (1997)). We also typically review a PCR petition with "deference to the
trial court's factual findings . . . 'when supported by adequate, substantial and
credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in
A-2668-18T1
8
original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549
(2002)). However, where, as here, "no evidentiary hearing has been held, we
'may exercise de novo review over the factual inferences drawn from the
documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134,
146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at
421). We also review de novo the legal conclusions of the PCR judge. Harris,
181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).
To establish a prima facie claim of IAC, a defendant must satisfy the two-
prong Strickland test, and "bears the burden of proving" both prongs of an IAC
claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350
(2012). Specifically, a defendant must show that (l) "counsel's performance was
deficient" and he "made errors so serious that counsel was not functioning as the
'counsel' guaranteed . . . by the Sixth Amendment" to the United States
Constitution; and (2) "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable
probability is defined as "a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
A-2668-18T1
9
Under the first Strickland prong, "a defendant must overcome a 'strong
presumption' that counsel exercised 'reasonable professional judgment' and
'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.
123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is
strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.
at 690, as measured by a standard of "reasonable competence." Fritz, 105 N.J.
at 53. However, "'[r]easonable competence' does not require the best of
attorneys," State v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of
detailed rules for counsel's conduct can satisfactorily take account of the variety
of circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant." Strickland, 466 U.S. at
688-89.
For that reason,
an otherwise valid conviction will not be overturned
merely because the defendant is dissatisfied with his or
her counsel's exercise of judgment during the trial. The
quality of counsel's performance cannot be fairly
assessed by focusing on a handful of issues while
ignoring the totality of counsel's performance in the
context of the State's evidence of defendant's guilt. As
a general rule, strategic miscalculations or trial
mistakes are insufficient to warrant reversal except in
those rare instances where they are of such magnitude
as to thwart the fundamental guarantee of a fair trial.
A-2668-18T1
10
[State v. Castagna, 187 N.J. 293, 314-15 (2006)
(citations, internal quotation marks, and brackets
omitted).]
Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential."
Strickland, 466 U.S. at 689.
Under the second Strickland prong, defendant must prove prejudice.
Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an
exacting standard" and "'[t]he error committed must be so serious as to
undermine the court's confidence in the jury's verdict or the result reached.'"
State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting
Castagna, 187 N.J. at 315).
Applying these principles, we are satisfied defendant failed to make a
prima facie showing of IAC under the Strickland/Fritz test, and we discern no
abuse of discretion in the judge's denial of defendant's PCR petition without an
evidentiary hearing. We agree with Judge Gizzo that defendant's contention that
his attorney failed to effectively cross-examine Rios is belied by the record. As
to defendant's contention that his attorney was ineffective by failing to
investigate the 9-1-1 caller, an attorney's failure to investigate "is a serious
A-2668-18T1
11
deficiency that can result in the reversal of a conviction." Porter, 216 N.J. at
353. "[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary."
Strickland, 466 U.S. at 691. However, "when 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 the affiant or the person making the
certification." Cummings, 321 N.J. Super. at 170.
Here, as the judge explained, other than rank speculation, defendant
offered no support for his claim that the 9-1-1 caller would have exonerated him.
See id. at 171 (rejecting the defendant's contention that trial counsel was
ineffective by failing to adequately investigate the case by interviewing
witnesses because defendant "offer[ed] nothing as to what those witnesses
would have said had they been interviewed."). As the judge noted, given the
equally plausible likelihood that the 9-1-1 caller's testimony would have
"actually harmed [d]efendant's case," his attorney's "reasonable professional
judgment[] support[ed] the limitation[] on investigation." Strickland, 466 U.S.
at 691.
Affirmed.
A-2668-18T1
12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
