Opinion
DOCKET NO. A-0743-13T1
01-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT ZACK, a/k/a ARRASHEED H. COLES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-10-3161. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Robert Zack appeals from the denial of his petition for post-conviction relief (PCR). Defendant was convicted after trial of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10(a)(1), second-degree possession of cocaine and heroin with the intent to distribute, N.J.S.A. 2C:35-5(b)(2), and second-degree possession of cocaine and heroin within 500 feet of public housing, N.J.S.A. 2C:35-7.1. The State's motion for a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) was granted, and defendant received two concurrent sentences of eighteen years in custody with nine years of parole ineligibility.
Defendant appealed his conviction and sentences. We affirmed both. State v. Zack, No. A-3498-08 (App. Div. Jan. 14, 2011). Our Supreme Court denied certification, 206 N.J. 330 (2011), and the United States Supreme Court denied certiorari. ___ U.S. ___, 132 S. Ct. 1644, 182 L. Ed. 2d 241 (2012).
Defendant filed a pro se petition for PCR, which asserted a violation of his Sixth Amendment rights and ineffective assistance of his former trial counsel. After assignment of counsel, a supplemental brief was filed alleging that defendant was deprived of his right to participate in sidebar conferences during jury selection. Defendant also raised four claims of ineffective assistance of trial counsel: failure to effectively cross-examine a trial witness; failure to advise and pursue defendant's rights pursuant to State v. W.A., 184 N.J. 45 (2005); trial counsel forced defendant to abandon his plan to represent himself at trial; and trial counsel failed to object to the court's decision not to play back a portion of trial testimony for the jury.
Judge Peter Ryan, who presided at the jury trial, heard oral argument and determined that the issue of defendant's right to be present at sidebar during jury selection could not have been previously raised on appeal because it required substantiation beyond the record. Thereafter, Judge Ryan conducted an evidentiary hearing and heard the testimony of trial counsel and defendant.
In a comprehensive written opinion, Judge Ryan noted a stark contrast in the testimony of the two witnesses and found the recollection of trial counsel was more credible and reliable than defendant's. Judge Ryan found that defendant had written two letters to trial counsel asking him to "change his recollection of the events at sidebar during jury selection. [Defendant] pleaded with [trial counsel], stating that [trial counsel] would be well compensated if he lied during his testimony at the evidentiary hearing . . . . [Defendant's] statements are self-serving and inapposite to the factual record presented to the court."
In addition, Judge Ryan determined that defendant's constitutional right to be present during jury selection was not violated as he was given headphones to monitor the sidebar discussions. Judge Ryan found that the facts did not support defendant's claim that the headphones were inoperable. Judge Ryan found defendant's other ineffective assistance claims "untenable" and denied the petition for PCR.
On appeal, defendant raises one point in his counseled brief:
POINT I
DEFENDANT WAS DENIED HIS RIGHT TO BE PRESENT AT SIDEBAR DURING JURY SELECTION CONTRARY TO STATE V. W.A., 184 N.J. 45 (2005); AND BECAUSE HE WAS PREJUDICED THEREBY, THE ORDER DENYING THE PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED, AND THE MATTER REMANDED FOR A NEW TRIAL.
Defendant has raised the following additional arguments in a pro se supplemental brief, which we reproduce as presented:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED DEFENDANT'S RIGHT TO "SELF-REPRESENTATION" PROTECTED UNDER THE 6TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
POINT II
THE TRIAL COURT VIOLATED DEFENDANT'S 6TH AND 14TH AMENDMENT RIGHTS TO AN IMPARTIAL JURY AS GUARANTEED BY THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN IT DENIED DEFENDANT'S SUBSTANTIAL RIGHT TO BE PRESENT AND PARTICIPATE AT CRITICAL STAGE OF THE TRIAL IN VIOLATION OF DEFENDANT'S CONFRONTATION RIGHTS, THUS THE ORDER DENYING
THE PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED, AND THE MATTER REMANDED FOR A NEW TRIAL.We find none of these arguments persuasive and affirm on the basis of the thorough written opinion of Judge Ryan. We add only the following comment.
SUBPOINT A
DEFENDANT WAS DEPRIVED OF THE RIGHT TO EXERCISE HIS PEREMPTORY CHALLENGES IN A WHOLESALE MEANINGFUL FASHION AFTER INDIVIDUAL VOIR DIRE AND DEFENDANT'S EXCLUSION AT JURY SIDEBAR DISCUSSIONS, WHICH ALSO INFRINGED ON DEFENDANT'S CONFRONTATION RIGHTS.
It is a deeply rooted principle of our jurisprudence that "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). This deference is enhanced when the trial court is presented with compelling evidence of deception and, as here, a brazen and flagrant attempt to manipulate the judicial process.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION