STATE OF NEW JERSEY VS. ANTWIONE A. PARSLEY (11-04-0229, SALEM COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3659-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTWIONE A. PARSLEY, a/k/a
ANTOINE A. PARSLEY,
Defendant-Appellant.
Submitted February 27, 2019 – Decided May 8, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 11-04-0229.
Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the brief).
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David M. Galemba, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Antwione Parsley appeals the June 13, 2017 order denying his
petition for post-conviction relief (PCR). For the reasons stated by Judge Linda
L. Lawhun in her comprehensive written decision, we affirm.
Defendant was convicted of fourth-degree aggravated assault, N.J.S.A.
2C:12-1(b)(4); second-degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b); and second-degree possession of a weapon by a certain person,
N.J.S.A. 2C:39-7(b)(1). The jury was unable to reach a verdict on three other
counts, including first-degree attempted murder; those charges were
subsequently dismissed. On March 20, 2012, defendant was sentenced to an
aggregate of nine years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant was subsequently resentenced on May 15, 2015, on a remand for
merger.
The underlying facts are as follows. Defendant had accused the victim of
having provided the authorities with information regarding his illegal activities.
Defendant ended the argument by throwing a bicycle and a stroller at the victim,
and telling him he was "about to clear the street." The victim heard defendant
make a phone call during which he told someone to "bring Roscoe," which he
understood to be a reference to defendant's handgun. Later on, the victim saw
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defendant's car, was told to "watch out," and saw defendant standing behind a
school bus between two houses and pointing a gun in his direction. The victim
and another person fled the area when they heard gunshots.
When the incident occurred, the Salem County Prosecutor's Office had
coincidentally been intercepting defendant's cell phone communications
pursuant to a warrant, related to an ongoing narcotics investigation as well as an
investigation related to another shooting. Approximately half an hour after the
shooting, the victim called defendant. Defendant was recorded making
reference to the fact that the person defendant had been shooting at was not the
victim, but someone else. Some of the intercepted conversations were played to
the jury. All had been obtained pursuant to an electronic wiretap warrant.
Now on appeal, defendant raises the following two points:
POINT I
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR POST-
CONVICTION RELIEF BECAUSE HE
ESTABLISHED INEFFECTIVE ASSISTANCE OF
COUNSEL WITH RESPECT TO HIS CLAIM THAT
HE WAS PREJUDICED BY TRIAL COUNSEL'S
FAILURE TO MOVE FOR A STAY OF HIS TRIAL
PENDING THE OUTCOME OF HIS
INTERLOCUTORY APPEAL OF THE DENIAL OF
HIS MOTION TO CHANGE VENUE.
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POINT II
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR POST-
CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING BECAUSE HE
ESTABLISHED A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL WITH
RESPECT TO HIS CLAIM THAT HE WAS
PREJUDICED BY TRIAL COUNSEL'S FAILURE TO
MOVE TO SUPPRESS EVIDENCE OBTAINED
THROUGH THE WIRETAP OF [DEFENDANT'S]
PHONE BASED ON FAILURE OF LAW
ENFORCEMENT TO MINIMIZE NON-PERTINENT
CALLS.
In determining whether an attorney's representation is effective, we ask
whether (1) "counsel's performance was deficient" and he or she made errors so
egregious "that counsel was not functioning" effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) if the error in the
representation prejudiced the outcome of defendant's trial such that there exists
a "reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland v. Washington, 466
U.S. 668, 687, 694 (1984).
We agree with Judge Lawhun that defendant's bare allegations were
simply insufficient to have made out a prima facie case for PCR that would have
warranted an evidentiary hearing, much less relief. See State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999).
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Defendant's first point alleges he was substantially prejudiced by trial
counsel's failure to seek a stay of the trial pending the outcome of his application
for leave to take an interlocutory appeal of the denial of his change of venue
motion. Judge Lawhun reviewed the documentation counsel provided in support
of the original motion, four articles regarding defendant's criminal activities.
We agree that they do not mention these charges and are not stories likely to
have influenced potential jurors. Furthermore, the trial judge who denied
defendant's motion for a change of venue, although he concluded defendant
failed to establish "presumptively prejudicial publicity" or a "realistic likelihood
of prejudice," also stated in the order that he would revisit the issue should "voir
dire establish[] sufficient juror bias due to pretrial publicity" or that "a change
of location is 'necessary to overcome the realistic likelihood of prejudice
resulting from pretrial publicity.'" If defendant's application for leave to take an
interlocutory appeal was denied because the application for change of venue
lacked merit, certainly a request for a stay would have been denied as well. This
issue falls short of meeting Strickland's requirements.
Defendant's second point also lacks merit. The admission of wiretap
evidence in this case did not violate the statutory requirement that, in order to
protect the privacy of our citizens, authorities executing a wiretap warrant must
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minimize the hours of interception and attempt to terminate interception of non-
relevant calls. See State v. Catania, 85 N.J. 418, 422-23 (1981). The remedy
for failure to minimize hours of coverage, and to terminate surveillance of non-
relevant phone calls, is the suppression of the items. See Wiretap Act, N.J.S.A.
2A:156A-1.
The conversations about which defendant complains relate to his request
for a ride out of the area where the shooting took place. Nothing would lead us
to conclude they were not relevant to the charges, or otherwise require
suppression. In the absence of even minimal facts that would have supported a
suppression motion, counsel did not err by failing to file one.
Affirmed.
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