STATE OF NEW JERSEY VS. GARY C. JACQUES (05-04-0307, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1647-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY C. JACQUES,
Defendant-Appellant.
____________________________
Submitted September 26, 2017 – Decided October 18, 2017
Before Judges Reisner and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Accusation No. 05-04-0307.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Randolph E. Mershon,
III, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Gary C. Jacques appeals from a June 26, 2015 order
denying his petition for post-conviction relief (PCR). We affirm.
The trial evidence is detailed in the PCR judge's opinion and
in our opinion affirming defendant's conviction for robbery and
burglary on direct appeal. State v. Jacques, No. A-0662-06 (App.
Div. July 9, 2010), remanded, 212 N.J. 490 (2011).1 We summarize
the most pertinent facts. While committing a burglary, armed with
a knife, defendant was confronted by the homeowner, who chased him
outside, struggled with him, and pulled off defendant's
sweatshirt. Defendant ran away, with the victim in pursuit, but
was quickly apprehended by the police.
The victim told the police that the perpetrator was wearing
an olive green t-shirt under the sweatshirt.2 When the police
searched defendant's home, they found a t-shirt matching that
description. After returning home, the victim found a jacket in
his kitchen and some jewelry; neither the jewelry nor the jacket
belonged to the victim. At trial, the State relied heavily on
eyewitness identifications made shortly after the crime occurred.
The State also relied on evidence that defendant tried to bribe a
1
The Supreme Court remanded the matter to the trial court to
correct the judgment of conviction and to reconsider the period
of parole supervision imposed. Ibid.
2
A woman witness, who saw defendant struggling with the victim,
also testified that defendant was wearing a green t-shirt. She
testified that after defendant ran away with the victim chasing
him, she found a jacket with jewelry in the pocket near the scene.
She folded the jacket and brought it to the home of the victim,
who was her neighbor.
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witness. The State did not have any of the garments tested for
DNA, and defense counsel used the absence of DNA evidence to attack
the State's case.
In support of defendant's PCR petition, his PCR counsel
obtained a court order to have the various clothing tested for
DNA. Defendant's DNA was not found on the inside cuffs of the
sweatshirt or the jacket, although the DNA of several other unknown
persons, including a woman, were found on the garments. However,
he was a likely contributor to the DNA on the inside collar of the
olive green t-shirt. In his opinion, the PCR judge reasoned that
the DNA evidence, even if presented to the jury, would not have
changed the outcome of the trial. The judge also inferred that
trial counsel did not have the garments tested for DNA as a matter
of strategy, so that he could attack the State's case without
taking the risk that testing would reveal defendant's DNA on the
garments.
On this appeal, defendant raises the following point of
argument:
POINT ONE: DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO CONDUCT DNA TESTING
ON THE RECOVERED CLOTHING PRIOR TO TRIAL.
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Having reviewed the record in light of the applicable legal
standards, we affirm substantially for the reasons stated by the
PCR judge. We add these comments.
The trial record supports a conclusion that trial counsel
refrained from having the garments tested as a matter of trial
strategy. Moreover, the strategy was a wise one, because DNA
testing would have been a two-edged sword. Even if defendant's
DNA was not found on the sweatshirt, or on the jacket, there was
evidence of his DNA on the t-shirt, which was the garment the
burglar wore closest to his body. Further, because a woman witness
handled the jacket, the fact that a woman's DNA was on the garment
would not have affected the outcome of the trial. Finally, the
DNA found on the jacket and sweatshirt was never matched to anyone
else, much less anyone who might have committed the burglary.
In order to present a prima facie case of ineffective
assistance of counsel, defendant needed to produce legally
competent evidence that his attorney was ineffective and that
counsel's substandard representation prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42,
58 (1987). Because defendant did not present a prima facie case
on either prong of the Strickland test, he was not entitled to an
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evidentiary hearing. See State v. Preciose, 129 N.J. 451, 463-64
(1992).
Affirmed.
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