STATE OF NEW JERSEY VS. RYON L. GREEN (12-05-0580, CUMBERLAND COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0807-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RYON L. GREEN,
Defendant-Appellant.
_______________________
Submitted April 12, 2021 - Decided May 10, 2021
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 12-05-
0580.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Danielle R.
Pennino, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A jury convicted defendant Ryon Green of first-degree robbery and
related offenses, and the judge sentenced him to a fifteen-year term of
imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We
affirmed defendant's conviction and sentence on direct appeal. State v. Green,
No. A-5355-13 (App. Div. Aug. 5, 2016) (slip op. at 2). The Court denied his
petition for certification. 228 N.J. 90 (2016).
Defendant was indicted with Vascell McKoy for the armed robbery of a
gas station. We briefly summarize the trial evidence referenced in our prior
opinion. Green, slip op. at 3–6.
Neither the victim nor witnesses could identify the assailants, who wore
face coverings. Id. at 3–4. Based on a description of the getaway vehicle, police
proceeded to McKoy's nearby home minutes after receiving the report of the
robbery and arrived as he was backing the car out of the driveway; defendant
was in the passenger seat. Id. at 4–5. Police stopped the car nearby. Id. at 5.
Eventually, police recovered clothing, a gun and money from the car, McKoy's
home and from an area behind the gas station. Id. at 6. DNA evidence linked
McKoy to a hat found near the gas station, but no DNA evidence implicated
defendant. Ibid.
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Defendant testified at trial and denied any involvement. Id. at 6. He was
at McKoy's home, with his girlfriend, Vascell's sister, Vinchel McKoy, at the
time of the robbery.1 Ibid. Vascell was giving defendant a ride home when
police stopped the vehicle.
Defendant filed a timely pro se petition for post-conviction relief (PCR)
in which he asserted the ineffective assistance of trial counsel (IAC). In
defendant's supplemental certification, prepared with appointed PCR counsel's
assistance, defendant claimed that trial counsel failed to interview Vascell and
Vinchel. Both, he claimed, would have supported defendant's testimony at trial.
Defendant alleged that trial counsel refused to call either Vascell or Vinchel as
a witness despite defendant's direction to do so.
In his brief, PCR counsel asserted counsel's failure to investigate
corroboration of defendant's alibi required reversal of defendant's conviction, or
alternatively, an evidentiary hearing on defendant's petition.2 Attached to
counsel's brief were certifications from Vascell and Vinchel, and documentary
evidence that the Disciplinary Review Board considered three complaints made
1
For the balance of our opinion, to avoid confusion, we use the first names of
the McKoy family members, as necessary. We apologize for the informality.
2
We do not discuss other specific IAC claims defendant asserted because they
are not preserved for appeal.
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against trial counsel, one of which was in close proximity to the trial in this case,
and twice censured him.3 PCR counsel also noted that he was unable to obtain
trial counsel's file without first securing a court order. 4
The certification from Vascell, who had pled guilty prior to defendant's
trial and received a five-year term of imprisonment, said that defendant had
spent most of the two days prior to the robbery with Vinchel. Consistent with
defendant's trial testimony, Vascell claimed that defendant did not participate in
the robbery, and he was giving defendant a ride home when police stopped the
car.
Vinchel's certification confirmed that defendant was with her at the time
of the robbery and until Vascell returned home and defendant left with him in
Vascell's car. Vinchel certified that trial counsel never contacted her. Vascell
and Vinchel each certified that in 2018, they went to the prosecutor's off ice and
advised that defendant "did not have anything to do with the robbery."
3
In his PCR brief, counsel asserted that trial counsel was disciplined for
"negligence and lack of diligence," however, the documents in the appendix do
not specify the nature of the complaints.
4
The order is not in the record.
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In response, the State produced a certification from trial counsel. He said
defendant's claim that he instructed counsel to interview and subpoena Vascell
and Vinchel "to testify as alibi witnesses is not true." Counsel then averred:
Had [defendant] made such a suggestion, by no means
would I have agreed to involve either of the McKoys as
alibi witnesses because I am absolutely certain neither
. . . was able to provide truthful and legitimate alibi
testimony.
In addition to the ethical and legal barriers that
would have prevented my calling the McKoys as trial
witnesses, it is presently my belief that their
involvement in the trial would have assured a
conviction.
There was no further explanation of these rather vague assertions.
After considering oral argument, the PCR judge, who was not the trial
judge, announced a brief oral opinion on the record. Citing trial counsel's
certification, the judge concluded the decision not to call either or both McKoys
as witnesses was deserving of "great deference," because "[d]etermining which
witnesses to call . . . is one of those difficult, strategic decisions that any [t]rial
[a]ttorney must confront." Rejecting PCR counsel's argument that trial counsel
failed to provide any basis for not calling the McKoys as witnesses, the judge
reasoned, "the inference is that there would be ethical legal barriers" to doing
so. According to the judge, trial counsel "either knew that their testimony would
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be false and would not be permitted to present them, or something else . . . that
was obviously known."
The judge then considered both prongs of the Strickland/Fritz standard
applicable to IAC claims. 5 He concluded trial counsel "did investigate the alibi
witnesses and other witnesses and chose not to call those witnesses for reasons
stated in his [certification]." The judge also concluded defendant failed to
demonstrate any prejudice, noting, "[T]here was great evidence against the
defendants in this case. Their identifications . . . [and] other evidence[]
presented [was] sufficient to sustain the verdict of guilty." The judge concluded
defendant had not presented a prima facie case warranting an evidentiary
hearing. He entered the order under review denying defendant's petition, and
this appeal followed.
Before us, defendant argues in a single point that the PCR judge erred by
not granting an evidentiary hearing, which was necessary to resolve whether
trial counsel adequately investigated potential witnesses that could have
bolstered defendant's alibi at trial. We agree and remand for an evidentiary
hearing before a different judge.
5
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 58 (1987).
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Our rules anticipate the need to hold an evidentiary hearing on a PCR
petition, "only upon the establishment of a prima facie case in support of post-
conviction relief." R. 3:22-10(b). "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.'" State v. Porter, 216 N.J. 343, 355 (2013) (emphasis
added) (quoting R. 3:22-10(b)).
To succeed on an IAC claim, a defendant must first show "that counsel
made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Second, a defendant must show by a "reasonable
probability" that the deficient performance affected the outcome. Id. at 58. "A
reasonable probability is a probability sufficient to undermine confidence in th e
outcome." State v. Pierre, 223 N.J. 560, 583 (2015) (quoting Strickland, 466
U.S. at 694; Fritz, 105 N.J. at 52).
"To satisfy prong one, [defendant] had to 'overcome a "strong
presumption" that counsel exercised "reasonable professional judgment" and
"sound trial strategy" in fulfilling his responsibilities.'" State v. Nash, 212 N.J.
518, 542 (2013) (quoting State v. Hess, 207 N.J. 123, 147 (2011)). "[I]f counsel
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makes a thorough investigation of the law and facts and considers all likely
options, counsel's trial strategy is 'virtually unchallengeable.'" Ibid. (alteration
in original) (quoting State v. Chew, 179 N.J. 186, 217 (2004)).
When the court conducts an evidentiary hearing, "[o]ur standard of review
is necessarily deferential to a PCR court's factual findings . . . that are supported
by sufficient credible evidence in the record." Id. at 540 (citing State v. Harris,
181 N.J. 391, 415 (2004)). However, here, the judge did not conduct any
hearing; instead, he made factual determinations based solely on trial counsel's
certification. He never addressed the certifications furnished by defendant,
Vascell and Vinchel.
More importantly, the judge seemingly concluded that trial counsel had
actually investigated what Vascell or Vinchel might testify to if called as
witnesses; however, counsel never acknowledged speaking to either of them in
his certification. Vinchel's certification stated unequivocally that trial counsel
never spoke with her.
Counsel's certification made only oblique references to possible ethical
constraints that prevented him from calling the McKoys as witnesses. The judge
concluded that counsel believed the McKoys would perjure themselves or there
was "something else," known but undisclosed by counsel, that entered his
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decision-making process. Of course, that reasoning begs the question of how
counsel could have ethically permitted his client to testify at trial regarding an
alibi in which he claimed to be with Vinchel, yet somehow be ethically
prohibited from offering Vinchel's corroborative testimony. To the extent the
judge made credibility determinations based on the certifications, which were
sometimes contradictory, it was error, and we owe no deference to his factual
determinations. See Porter, 216 N.J. at 356 (noting it was "abundantly clear that
an evidentiary hearing was warranted" when the judge made credibility
determinations based only on certifications). Simply put, applying the indulgent
standards required, the evidence failed to support a claim that trial counsel
actually conducted any investigation of the alibi defense.
In considering the second, prejudice prong of the Strickland/Fritz
standard, "the strength of the evidence that was before the fact-finder at trial" is
important. Pierre, 223 N.J. at 583. Clearly, the judge misspoke when evaluating
the strength of the State's case, since there was no identification of defendant by
any witness at trial and all the forensic evidence inculpated Vascell, not
defendant. The State's case against defendant was entirely circumstantial.
Seen in this light, trial counsel's alleged investigative failures, if true, are
critical. "Failure to investigate an alibi defense is a serious deficiency that can
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result in the reversal of a conviction. Indeed, 'few defenses have greater
potential for creating reasonable doubt as to a defendant's guilt in the minds of
the jury [than an alibi].'" Porter, 216 N.J. at 353 (alteration in original) (quoting
State v. Mitchell, 149 N.J. Super. 259, 262 (App. Div. 1977)).
In sum, defendant presented a prima facie case for PCR relief that
warranted an evidentiary hearing. We remand the matter to the Law Division to
conduct such a hearing. We further order that because the PCR judge made
unwarranted credibility assessments on the limited record before him, the
hearing on remand should be conducted by a different judge. See, e.g., P.T. v.
M.S., 325 N.J. Super. 193, 220–21 (App. Div. 1999) (collecting cases
demonstrating reasons for ordering remand before a different judge).
Reversed and remanded. We do not retain jurisdiction.
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