STATE OF NEW JERSEY VS. DANTE WILSON (04-12-1517, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2358-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANTE WILSON,
a/k/a DONTA WILSON,
Defendant-Appellant.
_______________________
Submitted April 28, 2021 – Decided May 21, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Union County, Indictment No. 04-12-
1517.
Kelly Anderson Smith, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Deborah Bartolomey, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Dante Wilson was convicted of the fatal shooting of Cage
Suttle and related crimes. He appeals from an October 12, 2018 Criminal Part
order denying his petition for post-conviction relief (PCR) following a six-day
evidentiary hearing. We affirm.
The underlying trial evidence and procedural history are detailed in our
unpublished decision affirming defendant's conviction on direct appeal. State
v. Wilson, No. A-3732-10 (App. Div. Aug. 12, 2015). We incorporate both by
reference. We recounted the underlying facts as follows:
William Troy Mayes, the State's primary
witness, began transporting heroin to Pittsburgh,
Pennsylvania in 2002. The victim, Cage Suttle,
assisted Mayes with bagging the heroin and
transporting it from Elizabeth, where they both lived,
to Pittsburgh, where it was resold. In the process,
Mayes became familiar with a gang known as the
C.R.E.A.M. Team, members of which were engaged in
the sale of heroin in Pittsburgh. . . .
In early April 2004, Mayes sent Suttle to
Pittsburgh with a package of heroin. Because Mayes
was dissatisfied with its quality, he requested that
Suttle bring the heroin back to Elizabeth. Mayes
intended to return the heroin to the supplier from
whom he had purchased it.
....
Shortly before midnight on April 7, Mayes was
in front of his aunt's home in Elizabeth, meeting with
his heroin source. The source gave him a "finger" of
heroin, which consists of approximately ten grams of
heroin in a glove. As Mayes was talking with his
2 A-2358-18
source, a silver Ford Explorer SUV with Pennsylvania
license plates pulled up and double parked in front of
the house. Suttle was in the passenger's seat of the
Explorer.
Mayes went over to the Explorer and stood on
the driver's side. He testified that the street light was
near the car and it was “[r]eally lit up out there.”
According to Mayes, he looked into the Explorer to
see who Suttle had with him . . . .
The driver of the Explorer was later identified as
Eurie Nunley, a drug dealer from Pittsburgh. A man,
subsequently identified as Wilson, was sitting in the
back seat. Mayes recognized Nunley and Wilson,
both of whom he had seen in the past with a friend
who was affiliated with the C.R.E.A.M. Team in
Pittsburgh, but he did not know their names. . . .
Mayes told Nunley to come inside his aunt's
house, so he could show him some new heroin.
Nunley, Suttle, and Mayes went inside the house to
talk. Shortly thereafter, however, Suttle left and went
outside. Nunley and Mayes remained inside. Mayes
showed Nunley the finger of heroin, and told him that
he would bring heroin from that batch to Pittsburgh
later.
While Mayes was showing Nunley the heroin,
he heard three or four shots from outside the house.
As Mayes and Nunley were going downstairs to see
what had happened, Nunley expressed concern that
Mayes might be setting him up.
Once outside, Mayes saw the Explorer with its
passenger door and glove compartment open. Money
was scattered on the floor and around the car. Mayes
then saw Wilson running towards him and holding a
gun pointed at him. After Nunley yelled "nah, nah" to
3 A-2358-18
Wilson, he and Wilson got inside the Explorer and
drove away. . . .
A.E., a neighbor who lived across the street,
witnessed the shooting from a window in his
apartment. He testified that he heard four
"continuous" gunshots from "under [his] window."
After A.E. heard the first shot, he "ran" to the window
and saw "a guy chasing another guy on the sidewalk
running after him with a gun in his hand." He
witnessed one of the men shoot the other.
A.E. described the two men as black males. He
could not see their faces, but testified that they were
about the "same size, medium build." According to
A.E., one of the men had hair with "stripes." He did
not know the proper name for the hairstyle.
After the last shot was fired, A.E. saw the
shooter go on "top of the victim and kind of twist him
to the side" and go through his pockets and take
money. A.E. then heard the shooter yell towards men1
who had come out of the adjacent house, “Let’s go,
let’s go, let’s get out of here."
The shooter got into the passenger’s seat of the
Explorer, while one of the men who had just come out
of the house got into the driver’s seat. The Explorer
backed into the car behind it, then pulled away. A.E.
saw another man go back inside the house. The third
man got into another vehicle parked on the street and
drove away.
A.E. called 9–1–1 to report the shooting.
Fifteen minutes later, he saw a Pontiac sedan pull up.
A man came out of the house and got into the car,
which then drove away. According to Mayes, after
the shooting, he had called C.H. and asked him to pick
him up at his aunt’s house. C.H. confirmed that he
4 A-2358-18
had, and also testified that he had driven Suttle to
Walnut Street in Elizabeth earlier that evening. . . .
Mayes was subsequently arrested and
questioned by the police. After viewing a photo array,
he identified the driver of the Explorer as Nunley.
Following a second photo array, Mayes identified
Wilson as the shooter. With the assistance of the
police in Pennsylvania, the Elizabeth police arranged
for a lineup in Pittsburgh. Mayes identified Wilson
from a group of six men. Mayes testified that he had
no doubt about his choice.
[Id. at 1-2.]
A Union County grand jury returned an indictment charging defendant
with first-degree murder of Suttle, N.J.S.A. 2C:11-3(a)(1), (2) (count one);
second-degree conspiracy to possess a controlled dangerous substance (CDS)
with intent to distribute, N.J.S.A. 2C:5-2 and 2C:35-5(a)(1) (count two); third-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b)
(count three); second-degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count four); and second-degree possession of a weapon
while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count five).
At one point, jail authorities seized defendant's mail, which became the
subject of a pretrial suppression hearing. The trial court ultimately denied the
motion, finding the seizure was authorized by N.J.A.C. 10A:31-19.5, because
there was reliable information sufficient to raise legitimate concerns about
witness tampering and possible threats against Mayes, and defendant had not
5 A-2358-18
established that the search was pretextual or based on anything other than
reliable information of potential illegal activity.
Following a three-week trial, the jury found defendant guilty of the
lesser included offense of first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a)(1) on count one, and the remaining four counts. We affirmed
defendant's conviction on direct appeal and the Supreme Court denied
certification. State v. Wilson, 224 N.J. 244 (2016).
Defendant filed a pro se petition for PCR. The court dismissed it
without prejudice because his petition for certification was still pending. In
March 2016, defendant refiled his petition. Counsel was assigned to represent
him and submitted a supplemental petition along with certifications of family
members and his own certification in support of his alibi claim.
Defendant asserted that Lucy Cruz was interviewed by police shortly
after the shooting. She indicated that she heard three shots. When she looked
out of her door, she saw the victim leaning on the white Honda with a Hispanic
male with long black hair, wearing a white shirt and blue jeans with a black
handgun in his right hand, standing next to him. She claimed that the Hispanic
male took something from the victim and ran east on Marshall Street.
Defendant notes that trial counsel did not interview Cruz or call her as a
witness despite subpoenaing her and her presence in the courthouse.
6 A-2358-18
However, Cruz became ill and unavailable before the trial began. An
investigator for the Office of the Public Defender certified that Cruz "suffers
from multiple illnesses, such as anxiety, depression, heart problems and nerve
deficiency[,]" "did not want to talk to" the investigators, and "[i]t became
abundantly clear to [him] that Lucy Cruz was no longer available as a witness
for this case."
Defendant further asserted that during its investigation, law enforcement
learned that the victim was engaged to Clara McNeil, who gave a statement to
police, which was provided in discovery to trial counsel. McNeil indicated
that Suttle, Mayes, Charles Hawley, Nunley, and another individual were all in
her presence at various times on the night of the shooting. McNeil stated that
the men were together at 8:00 p.m., 8:30 p.m., and 11:30 p.m. that night.
McNeil did not identify defendant as being present on the night of the
shooting. Trial counsel did not use McNeil's statement at trial and did not
subpoena her as a witness. Defendant claims the statement could have been
used to undermine the credibility of Mayes and Hawley.
On January 11, 2018, the PCR judge determined defendant established a
prima facie case of ineffective assistance of counsel and granted an evidentiary
hearing to determine: (1) notice of the codefendant’s willingness to provide
exculpatory testimony; (2) the investigation of Tiffani Walker as a witness;
7 A-2358-18
and (3) the investigation of alibi witnesses Kendren Broadus, Tyrell Ferguson,
Tamika Ferguson, Aushakee Ferguson, Pernell Ferguson, Michael Jefferson,
and Angel Diggs.
Defendant, Aushakee, 1 Tyrell, Tamika, Pernell, and trial counsel
testified at the evidentiary hearing. Defendant withdrew his claims concerning
Nunley and Walker because they refused to testify. Jefferson did not testify at
the hearing because he had passed away.
Aushakee is defendant's second cousin and the daughter of Tamika. At
the time of the hearing, she was twenty-seven years old. Aushakee testified
she was thirteen years old and lived in Pittsburg in 2004. She visited
defendant's mother's home on April 8, 2004. Defendant gave her a t-shirt as a
birthday present that day. Aushakee later saw defendant at her birthday party
on April 9, 2004. Her testimony was partially contradicted by a July 25, 2019
certification she signed that averred that her birthday party was held on April
8, 2004. Aushakee further testified that she did not attend defendant's trial, did
not know the name of defendant's trial counsel, and was not contacted by
counsel or a Public Defender investigator.
1
We refer to several of the witnesses by their first name because they share a
common surname. We intend no disrespect.
8 A-2358-18
The PCR judge determined Aushakee "promoted inaccurate testimony
before [the] [c]ourt in a misguided effort to assist her cousin based upon their
familial relationship." He found Aushakee's testimony was not credible,
observing: "Her testimony contained many internal inconsistencies and was
contrived. If she is to be believed, her memory of events has improved with
time, contrary to human experience."
Tyrell, defendant's cousin, testified that when he was between fourteen
and eighteen years old, he lived with defendant's mother and was close with
defendant during that period. Around 7:00 p.m. on April 7, 2004, Tyrell
returned to defendant's mother's home from a youth detention program.
Around 8:00 p.m., defendant, his girlfriend, defendant's best friend Kendren
Broadus, and Broadus' girlfriend arrived. Defendant spent the night there.
Tyrell saw him the following morning with Broadus and his girlfriend.
Tyrell further testified that when he came home from school on April 8,
2004, defendant, Broadus, and others were there. The atmosphere was tense
because there were suspicions that Pernell stole money from Broadus'
girlfriend's purse. Tyrell did not attend Aushakee's birthday party that day
because it would have violated his curfew but claimed defendant attended it.
Tyrell did not reach out to defendant's trial attorney, and neither the
attorney nor investigators reached out to him. He was later contacted by
9 A-2358-18
defendant's PCR counsel and signed a certification that stated the day before
his arrest defendant was in a fight with Pernell.
The PCR judge found Tyrell's testimony was incredible, "[d]efying
common sense and human experience." He found Tyrell's mannerisms and
tonal inflections had "the appearance of unreliability." Furthermore, his
testimony contradicted his prior "certification in material respects."
Tamika is defendant's first cousin and Aushakee's mother. She testified
that in 2004, she lived in Pittsburgh with her four children and was employed
as a corrections officer. She and defendant had a close relationship; defendant
visited her home three to four times a week and often babysat her children.
Tamika testified that the day before her eldest child Aushakee’s
thirteenth birthday, she went to defendant's home early in the morning with
Aushakee before work to pick up the gift. She remembered Aushakee being
excited about her new t-shirt.
Tamika was not contacted by the Public Defender's office, its
investigator, or defendant's trial counsel. On August 22, 2017, she signed a
certification that she could not remember what kind of t-shirt defendant gave
Aushakee.
The PCR judge rejected Tamika’s testimony, stating it "defies common
sense." He found her body language and voice intonation made her a "wholly
10 A-2358-18
incredible witness" and her certification contradicted her testimony. The judge
further noted "the substantive portions of her testimony were developed
through leading questions to the point where the [c]ourt had to ask for non-
leading questions."
Pernell is defendant's first cousin. He testified that around seven or
eight p.m. on April 7, 2004, he and his younger brother visited defendant at his
home in Pittsburgh. Pernell was in high school and already had a criminal
record. Both stayed with defendant on April 7 and 8, 2004. Tyrell and several
of defendant's friends were also there.
The judge found Pernell's testimony "belied common-sense and appeared
to be scripted as he had specific recollection of the defense's key points, and
poor recollection of anything else." Pernell's "substantial criminal history" and
"untruthful" demeanor "negatively impact[ed] his credibility." The judge
deemed Pernell an incredible witness and rejected his testimony.
Defendant testified that in January 2008, after spending two and one-half
years in prison in Pennsylvania, he was extradited to New Jersey and met trial
counsel one month later. He told trial counsel he had never been to Union
County and clearly remembered his whereabouts on April 8, 2004, because of
Aushakee's party. Defendant said he spent the weekend at his mother's house
and told trial counsel that Tamika, Aushakee, Tyrell, Pernell, and four others
11 A-2358-18
could place him there on that day. He was under the impression trial counsel
would contact his alibi witnesses, with his mother acting as the contact person.
Defendant further alleged trial counsel only contacted him about five
times over the course of over two years. He claimed trial counsel failed to
answer letters but did "speak" with his girlfriend, Angel Diggs. He asked trial
counsel to speak to Aushakee, Broadus, and Jefferson, which he failed to do.
On cross-examination, defendant admitted he was highly involved in the
case and had prepared extensively for trial. He acknowledged he never
contacted family members about becoming alibi witnesses, contending it was
trial counsel's job to do so. When he wrote to family members, he refrained
from talking about the details of the case on the advice of counsel.
In January 2010, defendant wrote to trial counsel informing him that
Aushakee did not recall meeting with him prior to her birthday. He further
advised that although Aushakee remembered her gift, she did not remember
the conversations with defendant regarding her birthday. The letter also
named two additional alibi witnesses, Terry Adams and Antonin Smith, but
goes on to say that Adams was shot and killed in January 2007, and Smith died
of cancer in mid-2008.
In February 2010, defendant again wrote to trial counsel advising that he
no longer would be using Diggs as an alibi witness. Defendant testified that
12 A-2358-18
his decision resulted from trial counsel telling him that Diggs would not
support him. However, in a conversation with trial counsel, defendant
acknowledged that Diggs "sounds a little bit confused and mixed up."
As noted by the judge, "Diggs was actually called at trial by the State
due to [d]efendant allegedly attempting to influence her memory and
testimony." Defendant "attempt[ed] to feed information to Ms. Diggs
concerning his alibi." The court found that Diggs' testimony at trial "did not
comport with the alibi being advanced by [d]efendant."
Trial counsel testified that at the time of the PCR hearing, he had been
an assistant deputy public defender for almost twenty years and had handled
thousands of cases and "well over" 100 trials. He described defendant as well-
read, informed, intelligent, and actively involved in the defense of his case.
Defendant and he had frequently discussed trial strategy.
Trial counsel further testified that he investigated defendant's alibi, but it
"wasn't working out." He spoke to defendant's mother and sent her a January
6, 2010 letter regarding defendant's alibi. She was elderly and had problems
with memory. Trial counsel's file contained a note that during his two or three
conversations with defendant's mother, she said she would supply alibi names
but never did so. In a March 31, 2010 letter, defendant asked trial counsel to
remove his mother from the witness list.
13 A-2358-18
Trial counsel also testified that he investigated other alibi witnesses and
found that they did not recall the events described by defendant. He removed
Diggs as a potential witness because she was unable to provide sufficient
information due to memory issues, and her recollection of events did not match
defendant's. He considered Aushakee but decided she was too young to act as
an alibi witness.
Trial counsel thought the alibi defense was a "bad idea." A December
10, 2008 note in his file indicated defendant was unwilling to provide an alibi
because his mother and niece had him at different locations. He believed the
main alibi witnesses were "taking a dive" and "leading down [a] street that [he
did not] want to go down at that point . . . because there is a question as to
whether the alibi is legitimate or not." He reasoned that defendant's mother's
and girlfriend's "serious memory problems" was a "bad sign" that "cast[] a bad
shadow on the story."
Trial counsel testified that the agreed upon strategy was to attack the
credibility of Mayes, who was the State's key eyewitness to the homicide.
Trial counsel investigated Mayes' criminal history, concluding he was a career
drug dealer who would sell out anyone to improve his own position.
Defendant reviewed the discovery with counsel and pointed out
inconsistencies in Mayes' statements.
14 A-2358-18
The judge found that trial counsel "presented as an entirely credible
witness" and "as a zealous advocate whose practice was to work closely with
his client and advise his client based upon the facts of the case and his
experience." Trial counsel was "unwavering in his position that [d]efendant
consented to the defense presented and that an alibi defense would have been
presented if [d]efendant demanded same." His testimony established that four
of the key alibi witnesses, including defendant's mother, girlfriend, and close
cousin, would not support an alibi. Additionally, that the letters defendant
wrote to trial counsel "support[ed] [trial counsel's] recollection that the alibi
defense was not the defense that was going to be advanced at trial."
The PCR judge issued a comprehensive written decision that included
extensive credibility findings and concluded "there was an appropriate
informed consultation between [d]efendant and [trial counsel] on the issue of
alibi" and that "[a]fter this consultation, [d]efendant agreed not to pursue an
alibi at trial." Additionally, defendant's "position [was] one of convenience
rather than merit," which he "rejected as incredible." The judge found no
extrinsic evidence supported the alibi defense, which "was a poorly concocted
sham that would not have been believed by a rational juror."
Furthermore, there was no lack of investigation, as trial counsel's
investigation "was sufficient to establish that the alibi was not viable." As to
15 A-2358-18
the potential alibi witnesses that trial counsel was unable to contact, the court
considered those witnesses to be "ancillary to the defense as the testimony of
[d]efendant's mother, girlfriend, and Aushakee would undermine their version
of the alibi at trial – as was the case with the actual testimony of Angel Diggs."
Based on these findings, the judge concluded trial counsel's performance
did not fall below applicable standards and denied defendant's petition. This
appeal followed.
We granted defendant's motion to be represented by substituted counsel
and to submit supplemental briefing. In his initial brief, defendant argues:
BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE
PCR COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR PCR.
A. Legal Standards Governing Applications for
Post-Conviction Relief.
B. Trial Counsel was ineffective When He
Failed to Properly Prepare for this Case Pre-trial
by Failing to Investigate the Case and Failing to
Prepare and Litigate this Case During Trial and
Through to Sentencing. 2
In his supplemental brief, defendant raises the following additional points:
2
Defendant did not argue his sentence was illegal or excessive on direct
appeal. In this appeal, he did not brief any alleged ineffective assistance of
counsel relating to sentencing. According, we deem this claim waived. See
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue
not briefed on appeal is deemed waived.").
16 A-2358-18
POINT I
THE PCR COURT IMPROPERLY ASSESSED AND
DISMISSED THE TESTIMONIES OF
DEFENDANT'S ALIBI WITNESSES AS WELL AS
IMPROPERLY DENIED DEFENDANT'S PCR
MOTION.
POINT II
THE TRIAL COURT DENIED DEFENDANT DUE
PROCESS BY FAILING TO PROPERLY CONDUCT
AN EVIDENTIARY HEARING AS TO ALL OF
DEFENDANT'S ISSUES RAISED IN HIS PCR
PETITION AND BRIEF.
A. The Trial Court Abused Its Discretion in
Denying Defendant an Evidentiary Hearing as it
Related to Lucy Cruz.
B. PCR Court Should Have Granted an
Evidentiary Hearing as it Related to Clara
McNeil.
Defendant's petition for PCR is premised upon his right to effective
assistance of counsel in his criminal trial. He argues trial counsel was
ineffective "because his viable alibi defense was not presented at trial due to
the conduct of his attorney which fell below an objective standard of
reasonableness."
"In reviewing a PCR court's factual findings based on live testimony, an
appellate court applies a deferential standard; it 'will uphold the PCR court's
findings that are supported by sufficient credible evidence in the record.'"
17 A-2358-18
State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Nash, 212 N.J. 518,
540 (2013)). In particular, a reviewing court will grant deference to the PCR
judge's firsthand assessment of witness credibility. Ibid. "However, a 'PCR
court's interpretation of the law' is afforded no deference, and is 'reviewed de
novo.'" Ibid. (quoting Nash, 212 N.J. at 540-41).
In Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court established a two-pronged test for determining whether
defendant was afforded effective assistance of counsel:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel was
not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
[Id. at 687.]
The Strickland standard has been adopted for evaluating ineffective assistance
of counsel claims under Article 1, Paragraph 10 of the New Jersey
Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
"Judicial scrutiny of counsel's performance must be highly deferential."
Strickland, 466 U.S. at 689. "An attorney is entitled to 'a strong presumption'
that he or she provided reasonably effective assistance, and a 'defendant must
18 A-2358-18
overcome the presumption that' the attorney's decisions followed a sound
strategic approach to the case." Pierre, 223 N.J. at 578-79 (quoting Strickland,
466 U.S. at 689).
Generally, trial counsel should interview all alibi witnesses. Id. at 582.
However, "[d]etermining which witnesses to call to the stand is one of the
most difficult strategic decisions that any trial attorney must confront." State
v. Arthur, 184 N.J. 307, 320 (2005). Trial counsel must consider the testimony
a witness is expected to give, whether the witness's testimony can be
effectively impeached, whether the witness is likely to contradict the testimony
of other defense witnesses, whether the jury is likely to find the witness
credible, and other factors. Id. at 320-21 (citation omitted).
Our role in reviewing a decision not to call an alibi witness "is to fairly
assess" that decision "in the context of the State's case against defendant and
the strengths and weaknesses of the evidence available to the defense." Pierre,
223 N.J. at 579. When undertaking that assessment, we defer to the PCR
court's factual findings, including its findings as to the credibility of trial
counsel's testimony at the PCR hearing regarding trial strategy. Ibid.Defendant must establish his right to PCR "by a preponderance of the
credible evidence." Nash, 212 N.J. at 541 (quoting State v. Preciose, 129 N.J.
451, 459 (1992)). Our review of a PCR court's factual findings following an
19 A-2358-18
evidentiary hearing is deferential; "we will uphold the PCR court's findings
that are supported by sufficient credible evidence in the record." Id. at 540.
Applying these legal principles to the facts of this case, we affirm
substantially for the reasons expressed by Judge John M. Deitch in his cogent
written decision. We add the following comments.
The judge heard extensive testimony. His factual findings and
credibility determinations are amply supported by the credible evidence in the
record. His conclusions of law are consonant with applicable precedent.
Defendant argues that the credibility issues discussed by the judge are
irrelevant under a Pierre analysis. We disagree. The credibility of the
defendant, the potential alibi witnesses, and trial counsel was essential to
analyzing both prongs of the Strickland/Fritz test. It directly affected the
strength or weakness of the alibi, whether trial counsel adequately investigated
the defense, whether defendant agreed not to proceed with that defense, and
whether the decision to not present an alibi defense prejudiced him.
Defendant also argues that the judge erred by not permitting Cruz and
McNeil to testify during the evidentiary hearing. We disagree.
Cruz became ill and unavailable to testify, suffered from multiple
illnesses and psychiatric conditions, and was uncooperative. Defendant claims
counsel should have taken a sworn statement from her but did not offer any
20 A-2358-18
basis for the admissibility of the statement. Judge Deitch found that this
amounted to mere "piece[d-]together testimony to create a third[-]party guilt
defense based on Ms. Cruz['s] assertion that the man she saw standing next to
the victim was a Hispanic male." Notably, although defendant contends Cruz
was an eyewitness who identified the shooter, she told police that she did not
look outside until after the shots were fired. The judge found the "decision not
to call Lucy Cruz, or obtain a statement from her, [did] not rise to the level of
ineffective assistance of counsel."
As to McNeil, defendant instructed trial counsel not to use his mother,
girlfriend, and cousin Aushakee as alibi witnesses. Rather than proceeding
with an alibi that was not panning out, trial counsel and defendant agreed that
the better strategy was to attack the credibility of the State's primary witness,
an admitted large-scale heroin dealer.
While defendant claims her testimony would have "tied up" points made
in trial counsel's closing argument, the judge found "[t]his vague assertion
[was] not a basis for a claim of ineffectiveness of counsel." Additionally, her
statement was not admissible and the decision not to call Ms. McNeil was a
strategic decision as her testimony might easily have undermined his defense.
We review trial counsel's strategic decisions for reasonableness
"applying a heavy measure of deference to counsel's judgment[]." Strickland,
21 A-2358-18
466 U.S. at 691. Viewed through that lens, trial counsel's strategy was
reasonable under the circumstances. We also discern no abuse of discretion in
not allowing McNeil and Cruz as witnesses during the evidentiary hearing.
In sum, defendant did not satisfy either prong of the Strickland/Fritz test.
His petition was properly denied.
Defendant's remaining arguments lack sufficient merit to warrant further
discussion. R. 2:11-3(e)(2).
Affirmed.
22 A-2358-18