STATE OF NEW JERSEY v. SALAAM REEVEY

NOT FOR PUBLICATION WITHOUT THE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-0767-19T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SALAAM REEVEY, a/k/a
DESMOND REEVEY,
SALAAM D. REEVEY,
DESMOND S. REEVEY,
SALAAM DESMOND REEVEY,

     Defendant-Appellant.
___________________________

                   Submitted January 5, 2021 – Decided January 25, 2021

                   Before Judges Mawla and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 11-03-0410.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, on
                   the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Ednin D. Martinez, Assistant Prosecutor,
                   on the brief).
PER CURIAM

     Defendant appeals from an August 13, 2019 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing. We affirm.

                                      I.

     To provide context for our decision, we briefly recount the relevant facts

and procedural history as detailed in our opinion affirming defendant's

convictions and sentence:

           On the night of September 4, 2010, defendant and an
           accomplice, Larry Austin, approached a group of five
           people walking toward the light rail station in Jersey
           City. After brandishing a pistol, Austin led three men
           from the group down an alleyway, where he struck two
           of them with the end of the pistol before shooting and
           killing the third. During these assaults, Austin took
           possessions from each of the men, including a wallet
           and cell phone.

           As these events transpired, defendant was acting as a
           lookout for Austin. The two surviving victims testified
           that defendant "didn't say much," and did not touch
           them at all. Defendant was ultimately arrested and
           charged with murder,  N.J.S.A. 2C:11-3(a)(1) or -
           3(a)(2) (count one); felony murder,  N.J.S.A. 2C:11-
           3(a)(3) (count two); three counts of first-degree
           robbery,  N.J.S.A. 2C:15-1 (counts three, four, and
           five); two counts of first-degree aggravated assault
           causing serious bodily injury,  N.J.S.A. 2C:12-1(b)(1)
           (counts six and seven); two counts of third-degree
           aggravated assault with a deadly weapon, N.J.S.A.
           2C:12-1(b)(2) (counts eight and nine); possession of a
           weapon with an unlawful purpose,  N.J.S.A. 2C:39-4(a)

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            (count ten); and unlawful possession of a weapon,
             N.J.S.A. 2C:39-5(b) (count eleven).

            Following trial, a jury convicted defendant on counts
            three, four, and five of the lesser-included offense of
            second-degree robbery, as well as the two counts of
            third-degree aggravated assault.

            [State v. Reevey, No. A-2035-13 (App. Div. Feb. 3,
            2016) (slip op. 1-3).]

      Before the sentencing court, defendant's trial counsel submitted a brief in

which he relied on State v. Yarbough,  100 N.J. 627, 643-44 (1985), and argued

for concurrent rather than consecutive sentences. He contended defendant's role

in the robbery "was inherently passive" and that the "crimes and their obje ctives

were clearly part of a single period of aberrant behavior by [defendant]."

      Trial counsel further contended that "[d]efendant's single act was that of

accomplice" and that his "crime and objective were one in the same, one act."

He acknowledged that the "crimes involved separate acts of violence" but they

were "perpetrated by [Austin, the] primary actor." Finally, counsel stressed that

"[d]efendant's actions were committed so closely in time and place as to indicate

a single period of aberrant behavior."

      In addition, during oral argument, defendant's trial counsel noted that

"[defendant] still maintains his innocence" and that "in no way did he know what

was going to go on in Mr. Austin's mind." He also conceded that defendant

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"can't dispute some of the [Yarbough] factors" but argued that the "equities cry

out that . . . [the court] consider the concurrent aspect under [Yarbough]."

      After merging the aggravated assault and robbery counts and considering

the applicable aggravating and mitigating factors, the court sentenced defendant

to a ten-year custodial term on count three (which addressed the victim who

died), and seven years each on counts four and five. The sentencing court

ordered that defendant's sentences run consecutively for a total of twenty-four

years, with an 85% period of parole ineligibility under the No Early Release Act

(NERA),  N.J.S.A. 2C:43-7.2.

      In rejecting defendant's request for concurrent sentences, the sentencing

court noted the "conduct that occurred here [involved] separate acts of violence."

Additionally, the court cited State v. Molina,  168 N.J. 436 (2001), for the

proposition that "crimes involving multiple victims represented especially

suitable circumstances for the imposition of consecutive sentences."

      On direct appeal, defendant argued that his sentence was excessive and

unduly punitive.     Defendant's appellate counsel contended that "[w]hile

consecutive sentences were likely warranted because there were multiple

victims, . . . the sentencing court violated Yarbough [g]uideline [five] by

imposing the same sentence on counts four and five."


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      We rejected these arguments and affirmed. Regarding the Yarbough

argument, we stated:

            Defendant finally argues that, pursuant to State v.
            Yarbough, the sentencing judge should not have
            imposed equal seven-year sentences for his two
            additional robbery convictions. In Yarbough, our
            Supreme Court specifically noted that "successive
            terms for the same offense should not ordinarily be
            equal to the punishment for the first offense." The
            sentencing judge acknowledged this requirement, and
            thus sentenced defendant to a ten-year prison term for
            the first robbery conviction, but only seven-year prison
            terms for each of the additional robbery convictions.
            Defendant provides no support for the assertion that the
            two additional robbery convictions cannot be for equal
            lengths. Defendant's twenty-four-year sentence was
            not excessive.

            [Reevey, slip op. at 10 (citations omitted).]

      On October 16, 2018, defendant filed a timely PCR petition in which he

alleged ineffective assistance of both trial and appellate counsel on the "narrow

issue" of "consecutive versus concurrent" sentencing.        After hearing oral

arguments, Judge John A. Young issued an August 14, 2019 order and

corresponding opinion in which he concluded that defendant failed to establish

a prima facie case that either his trial or appellate counsel was constitutionally

ineffective under the two-part test detailed in Strickland v. Washington, 466




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                                         5 U.S. 668 (1984), and State v. Fritz,  105 N.J. 42 (1987). The court accordingly

denied defendant's petition without an evidentiary hearing.

      With regard to defendant's trial counsel, the judge explained that contrary

to defendant's contentions, defendant's trial counsel had argued "that [defendant]

played a passive role in the offense." Further, the judge concluded defendant

failed to establish prejudice because the sentencing court noted defendant's

"active participation" and found "[defendant] acted as an accomplice that night

to help Mr. Austin accomplish what he was set out to do." Additionally, Judge

Young noted and rejected trial counsel's argument that defendant was convicted

of a "single act."

      As to defendant's appellate counsel, Judge Young relied upon State v.

Gaither,  396 N.J. Super. 508, 515 (App. Div. 2007), and explained appellate

counsel is "not required to present every non-frivolous legal claim."

Additionally, the judge cited State v. Carey,  168 N.J. 413, 429 (2001), and found

defendant did not have a "reasonable likelihood of succeeding on [the concurrent

sentencing] claim in his appeal" because of the multiple victims in this case.

      Before us, defendant raises the following point for our consideration:

             THIS MATTER MUST BE REMANDED FOR AN
             EVIDENTIARY      HEARING     BECAUSE
             DEFENDANT ESTABLISHED A PRIMA FACIE
             CASE OF TRIAL AND APPELLATE COUNSELS'

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            INEFFECTIVENESS FOR NOT ADEQUATELY
            PURSUING THE IMPOSITION OF CONCURRENT
            SENTENCES; IN THE ALTERNATIVE, THIS
            MATTER MUST BE REMANDED FOR THE PCR
            COURT TO ADDRESS THE NARROW YARBOUGH
            ISSUE RAISED AT THE PCR HEARING. (Partially
            Raised Below).

      We disagree with defendant's argument and affirm substantially for the

reasons stated by Judge Young in his written decision. R. 2:11-3(e)(2). We

offer the following additional comments.

                                       II.

      "[W]here the [PCR] court does not hold an evidentiary hearing, we may

exercise de novo review over the factual inferences the trial court has drawn

from the documentary record." State v. O'Donnell,  435 N.J. Super. 351, 373

(App. Div. 2014) (citation omitted). We review a PCR court's legal conclusions

de novo. State v. Harris,  181 N.J. 391, 415-16 (2004) (citing Toll Bros., Inc. v.

Twp. of W. Windsor,  173 N.J. 502, 549 (2002)).

      A claim for ineffective assistance of counsel must satisfy the two-part test

pronounced in Strickland by demonstrating that "counsel's performance was

deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."




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 466 U.S.  at 687; see also Fritz,  105 N.J. at 58. This test applies to appellate

counsel as well. State v. Loftin,  191 N.J. 172, 197-98 (2007).

      The first prong requires a showing that "counsel's representation fell

below an objective standard of reasonableness." Strickland,  466 U.S.  at 688. A

defendant, however, must overcome a strong presumption that counsel rendered

reasonable professional assistance. Id. at 689. "The test is not whether defense

counsel could have done better, but whether he met the constitutional threshold

for effectiveness." State v. Nash,  212 N.J. 518, 543 (2013). Further, the failure

to raise unsuccessful legal arguments does not constitute ineffective assistance

of counsel. State v. Worlock,  117 N.J. 596, 625 (1990) (citing Strickland,  466 U.S. at 688).

      Under the second prong, a defendant must demonstrate that his counsel's

errors prejudiced the defense such as to deprive defendant of a fair and reliable

outcome. Strickland,  466 U.S.  at 687. To prove this element, 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.

      Moreover, a defendant is not automatically entitled to an evidentiary

hearing by simply raising a PCR claim. State v. Cummings,  321 N.J. Super.
 154, 170 (App. Div. 1999) (citing State v. Preciose,  129 N.J. 451, 462 (1992)).


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An evidentiary hearing is required only when: 1) a defendant establishes a prima

facie case in support of PCR, 2) the court determines there are disputed issues

of material fact that cannot be resolved by review of the existing record, and 3)

the court determines that an evidentiary hearing is required to resolve the claims

asserted. State v. Porter,  216 N.J. 343, 354 (2013) (citing R. 3:22-10).

      "A prima facie case is established when a defendant demonstrates 'a

reasonable likelihood that his or her claim, viewing the facts alleged in the light

most favorable to the defendant, will ultimately succeed on the merits.'" Id. at

355 (quoting R. 3:22-10(b)). In other words, there are "material issues of

disputed fact which cannot be resolved by reference to the existing record."

State v. Pyatt,  316 N.J. Super. 46, 51 (App. Div. 1998). Mere bald assertions

are insufficient. Cummings,  321 N.J. Super. at 170.

      Defendant argues that he established a prima facie claim that his trial and

appellate counsel's performance was constitutionally ineffective because they

failed to assert that "defendant's 'limited intent[]' [in the robberies] translated 'as

being a simple act,' thereby satisfying a compelling Yarbough factor for

imposition of concurrent sentences," and argues a remand is necessary to

"address [his] narrow Yarbough claim." We disagree as defendant's arguments

are factually unsupported by the record and legally meritless.


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      When deciding whether to impose concurrent or consecutive sentences,

the court considers the following guidelines established in Yarbough:

            (a) the crimes and their objectives were predominantly
            independent of each other;

            (b) the crimes involved separate acts of violence or
            threats of violence;

            (c) the crimes were committed at different times or
            separate places, rather than being committed so closely
            in time and place as to indicate a single period of
            aberrant behavior;

            (d) any of the crimes involved multiple victims;

            (e) the convictions for which the sentences are to be
            imposed are numerous.

            [ 100 N.J. at 643-44.]

      "The Yarbough factors are qualitative, not quantitative; applying them

involves more than merely counting the factors favoring each alternative

outcome." State v. Cuff,  239 N.J. 321, 348 (2019) (citations omitted). "When

a sentencing court properly evaluates the Yarbough factors in light of the record,

the court's decision will not normally be disturbed on appeal." State v. Miller,

 205 N.J. 109, 129 (2011) (citing State v. Cassady,  198 N.J. 165, 182 (2009)).

      "Crimes involving multiple deaths or victims who have sustained serious

bodily injuries represent especially suitable circumstances for the imposition of


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consecutive sentences." Carey,  168 N.J. at 428 (citations omitted). Indeed, "that

principle resonates most clearly in cases in which a perpetrator intentionally

targets multiple victims (e.g., a double murder or robbery)." Id. at 429. The

multiple-victims factor under Yarbough "is entitled to great weight and should

ordinarily result in the imposition of at least two consecutive sentences."

Molina,  168 N.J. at 443 (citations omitted).

      Here, defendant has failed to establish that either his trial or appellate

counsel was constitutionally defective in their performance, or that he was

prejudiced. The record from the sentencing proceeding clearly establishes that

defendant's trial counsel repeatedly argued defendant did not "take part in . . .

separate acts of violence," which warranted concurrent sentencing under

Yarbough.     Indeed, trial counsel argued in the sentencing brief that

"[defendant's] crime and objective were one in the same, one act" and that "the

jury found [defendant] guilty of one act."

      Further, although appellate counsel did not raise the concurrent sentencing

argument that defendant now contends should have been asserted, appellate

counsel did argue that defendant's sentence was excessive on alternative

grounds.    As Judge Young noted, appellate counsel is not constitutionally

deficient for failing to "advance any grounds insisted upon by defendant."


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Gaither,  396 N.J. Super. at 515 (quoting R. 3:22-6(d)); see also Worlock,  117 N.J. at 625.

      Moreover, even if we were to indulge defendant's argument that he

satisfied the performance prong of the Strickland test, defendant has failed to

establish that he was prejudiced by his trial or appellate counsel's defective

performance as defendant did not have a reasonable likelihood that he would

have succeeded in receiving a concurrent sentence. Indeed, the jury convicted

defendant as an accomplice and was therefore "legally accountable" for Austin's

actions. See  N.J.S.A. 2C:2-6. These separate crimes involving three victims

clearly warranted consecutive sentences. See Carey,  168 N.J. at 429.

      Because we agree with Judge Young that defendant did not establish a

prima facie case of ineffective assistance of counsel, we likewise conclude he

did not abuse his discretion in denying defendant's request for an evidentiary

hearing. See Preciose,  129 N.J. at 462. To the extent we have not addressed

any of defendant's arguments it is because we have concluded that they are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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