Opinion
DOCKET NO. A-4167-11T3
04-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DESROY TURNER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-07-0653.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Desroy Turner appeals from the August 9, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial and appellate counsel. We affirm.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five). The charges stemmed from defendant's involvement in the shooting death of Mario Minto in a nightclub where defendant's entertainment company was providing music for a party. Defendant's theory of the case was that Christopher Hall shot Minto; however, an eyewitness, Romeo Prince, testified at trial that defendant shot the victim.
The grand jury also indicted defendant for second-degree certain persons not to possess weapons, N.J.S.A. 2C:39:7 (count seven). He was acquitted of that charge.
Following a jury trial, defendant was convicted on count one of the lesser charge of aggravated manslaughter, and on counts three and five. At sentencing, the trial judge merged count three into count one, and imposed a twenty-one year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count five, the judge imposed a consecutive five-year term of imprisonment with a one-year period of parole ineligiblity.
Defendant appealed his conviction, arguing for the first time that the verdict was against the weight of the evidence. We concluded the argument lacked merit because "[t]he jury's verdict was grounded on its assessment of witness credibility. The jury believed Prince that defendant shot Minto." State v. Turner, No. A-1512-06 (App. Div. June 10, 2008) (slip op. at 15). We made clear that "[w]e 'may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced.'" Ibid. (quoting State v. Smith, 2 62 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993)).
Defendant also appealed his sentence, arguing, in part, that the judge failed to find applicable mitigating factors. Id. at 2, 15. We found that the record "amply supported" the judge's findings of aggravating and mitigating factors, and the sentence was not excessive. Id. at 18.
On March 4, 2010, defendant filed a PCR petition contending that trial counsel rendered ineffective assistance by failing to: (1) communicate with him about and independently investigate Hall in order to strengthen the third-party guilt defense; (2) request an interpreter at trial; (3) file several pre-trial motions; (4) retain an expert regarding his background and mental history; (5) object to the prosecutor's Brady violation; and (6) file a motion for a new trial. Defendant contended that trial counsel was deficient at sentencing for failing to properly argue aggravating and mitigating factors and zealously advocate for the minimum sentence. Defendant also argued that appellate counsel rendered ineffective assistance by failing to raise meritorious issues on appeal.
Specifically, defendant asserted that trial counsel failed to file motions: to dismiss the indictment; for discovery; to produce exculpatory evidence; and to suppress his arrest for lack of probable cause.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The judge found aggravating factor three, the risk that defendant will commit another offense), N.J.S.A. 2C:44-1a(3); aggravating factor six, defendant's prior criminal history, N.J.S.A. 2C:44-1a(6); aggravating factor nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9); and mitigating factor five, the victim's conduct induced or facilitated defendant's conduct, N.J.S.A. 2C:44-1b(5).
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In an August 9, 2011 written opinion denying the petition without an evidentiary hearing, Judge Raymond A. Reddin found that trial counsel presented sufficient evidence of Hall's culpability, and defendant failed to establish what a further investigation of Hall would have revealed. The judge also found that: defendant understood the English language and required no interpreter; trial counsel filed extensive pre-trial discovery motions and a motion to suppress ballistics evidence; the other motions defendant mentioned lacked merit; defendant did not establish he suffered from a mental health problem requiring an expert; there was no Brady violation; and we had addressed, and rejected, the new trial and sentencing issues. The judge further found that defendant failed to establish that appellate counsel rendered ineffective assistance. In this appeal, defendant raises the same contentions he raised before Judge Reddin.
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate that counsel's performance was deficient and the deficiency prejudiced the defense. Nash, supra, 212 N.J. at 542 (citations omitted).
We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Reddin in his well-reasoned written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION