Opinion
DOCKET NO. A-5632-09T3
06-26-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN LEE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel; John J. Scaliti, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Ashrafi.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-02-0302.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel; John J. Scaliti, Legal Assistant, on the brief). PER CURIAM
Defendant, Kevin Lee, appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
In April 1998, following a jury trial, defendant was convicted of several charges, including murder, felony murder, conspiracy to commit armed robbery, armed robbery, possession of a firearm for an unlawful purpose, and possession of a handgun without a permit. After appropriate merger of offenses, Judge Timothy J. Sullivan imposed concurrent terms aggregating a life sentence with a thirty-year period of parole ineligibility. We affirmed on direct appeal. No. A-3844-98 (App. Div. June 18, 2003), certif. denied, 180 N.J. 150 (2004).
While the appeal was pending in this court, defendant filed his first pro se PCR petition. This petition was denied by Judge Sullivan pursuant to Rule 3:22-3.
The proofs against defendant were fully set forth in our opinion on direct appeal. State v. Kevin Lee, A-3844-98, id. at slip op. 2-8. We summarize the evidence to provide a context to our discussion. Defendant, Kevin Richards and Alva McLean, conspired to commit an armed robbery of an off-duty police officer who worked part-time as a security guard for Sears in Hackensack. The conspirators noted, based on their surveillance, that one of the victim's duties was to place the Automotive Department's proceeds in a toolbox and transport it across a large parking lot to the main Sears building.
On April 19, 1996, the conspirators fatally shot the off-duty officer in order to retrieve the cash proceeds. The men divided the money and remained at large for many months. A long investigation followed, which ultimately led to the indictments and arrests of defendant, Richards and McLean.
After Judge Sullivan granted a motion to sever, defendant was tried separately from Richards. Numerous witnesses testified for the State. The defense presented additional witnesses and the defendant testified on his own behalf. After deliberation, the jury found defendant guilty.
Defendant filed a second PCR petition, which was dismissed by Judge William C. Meehan for failure to submit a brief. Designated PCR counsel filed a supplemental brief, and the second PCR petition was reinstated. Defendant argued he was denied his constitutional guarantees to due process and a fair trial because co-defendant Richards's confession, which was admitted at trial, was false and coerced. Moreover, the introduction of Richards's confession and McLean's statement was a denial of his Sixth Amendment right of confrontation because the statements constituted hearsay pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2006).
In a pro se brief, defendant argued he was denied the effective assistance of trial counsel based on counsel's failure to conduct an adequate investigation. Defendant also challenged the representation by appellate counsel.
Judge Harry G. Carroll presided over the second PCR petition hearing. On December 8, 2009, Judge Carroll issued a written opinion that denied the petition. After summarizing the facts and correctly identifying the governing Strickland/Frit z standard, Judge Carroll rejected all of defendant's arguments and comprehensively addressed his claims of denial of due process, ineffective assistance of trial and appellate counsel, and denial of an evidentiary hearing.
Defendant now appeals, contending:
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.We reject these arguments and affirm substantially for the reasons expressed by Judge Carroll in his December 8, 2009, written opinion.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT HAS ESTABLISHED A PRIMA FACIE CASE OF APPELLATE AND/OR PCR COUNSELS' INEFFECTIVENESS DUE TO THEIR FAILURE TO PURSUE THE FINGERPRINT ISSUE (Not Raised Below).
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS CONSTITUTIONAL RIGHT OF CONFRONTATION WAS VIOLATED BY THE ERRONEOUS ADMISSION OF CO-DEFENDANTS' RICHARDS' AND MCLEAN'S INCRIMINATING STATEMENTS.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE THAT HE WAS DENIED DUE PROCESS AND A FAIR TRIAL AS A RESULT OF CO-DEFENDANT RICHARDS' INCRIMINATING STATEMENT ELICITED BY PHYSICAL ABUSE AND/OR DEATH THREATS.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 8 L. Ed. 2d 674, (1984); State v. Fritz, 105 N.J. 42 (1987).