STATE OF NEW JERSEY VS. DENNIS KERRIGAN (08-02-0187, MERCER COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-4085-15T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    DENNIS KERRIGAN,
    Defendant-Appellant.
    ____________________________
    Submitted October 3, 2017 – Decided October 31, 2017
    Before Judges Reisner and Gilson.
    On appeal from the Superior Court of New
    Jersey,   Law   Division,  Mercer County,
    Indictment No. 08-02-0187.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Adam W. Toraya, Designated
    Counsel, on the brief).
    Angelo J. Onofri, Mercer County Prosecutor,
    attorney for respondent (Timothy Francis
    Trainor, Assistant Prosecutor, of counsel and
    on the brief).
    PER CURIAM
    Defendant Dennis Kerrigan appeals from a March 22, 2016 order
    denying his petition for post-conviction relief (PCR) without an
    evidentiary hearing.           We affirm substantially for the reasons
    explained by Judge Timothy P. Lydon in his thorough written
    opinion.
    I.
    Defendant lived in a townhouse complex.            In 2010, a jury
    convicted him of fourth-degree stalking of the manager of the
    complex, N.J.S.A. 2C:12-10(b).         He was sentenced to two years of
    probation.
    At trial, the State presented testimony from three witnesses:
    the complex's manager, another resident of the townhouse complex,
    and a police officer.     In short, the witnesses testified that the
    defendant often attended association meetings and often became
    loud   and   disruptive   at   those    meetings.   The    witnesses   also
    testified that defendant had confronted the manager on several
    occasions and had acted aggressively towards her.          The manager and
    resident testified that defendant was seen staring at the manager
    on numerous occasions and that he often parked his vehicle in the
    parking lot next to her office and would sit and stare at her
    office.      Indeed, the manager logged over fifty instances where
    defendant acted aggressively towards her and others, the majority
    of which he either confronted or watched her.
    On a particular occasion, defendant drove his van into the
    parking lot next to the manager's office, parked, and stared at
    the manager's office.      When the manager came out of her office,
    2                           A-4085-15T3
    she saw defendant, became frightened, and called the police.                        When
    the police arrived, defendant drove away, but later came back and
    again began staring at the manager's office.
    On direct appeal, we affirmed defendant's conviction and
    sentence   and    the    Supreme      Court    denied        his     petition        for
    certification.     State v. Kerrigan, No. A-5162-09 (App. Div. Oct.
    14, 2011), certif. denied, 
    210 N.J. 263
     (2012).
    In February 2015, defendant filed a petition for PCR.                      He was
    assigned   counsel,     and   the    PCR    court    heard    oral       argument      on
    defendant's petition on March 18, 2016.               On March 22, 2016, the
    PCR court entered an order denying defendant's petition and issued
    a written opinion supporting that order.
    In his PCR petition, defendant argued that his trial counsel
    was deficient in failing to: (1) enforce subpoenas; (2) show that
    the charges against defendant had no basis and were retaliatory;
    (3)   present    evidence     that   defendant      had   filed      a    harassment
    complaint against the manager; (4) show that defendant had filed
    a complaint with the Internal Affairs Department of the police
    department; (5) elicit certain testimony on cross-examination of
    the police officer; and (6) bring out certain testimony from the
    resident   and   manager.       Judge      Lydon    addressed      each    of     those
    contentions in his written opinion.            He found that defendant had
    not established prejudice from any of the contentions.                       He also
    3                                       A-4085-15T3
    found that defendant failed to make a prima facie showing that his
    trial counsel was ineffective.
    II.
    On    this   appeal,   defendant    makes   one   argument,    which       he
    articulates as follows:
    POINT I – THE TRIAL COURT ERRED IN DENYING THE
    DEFENDANT'S   PETITION   FOR   POST-CONVICTION
    RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
    HEARING TO FULLY ADDRESS HIS CONTENTION THAT
    HE   FAILED   TO   RECEIVE    ADEQUATE   LEGAL
    REPRESENTATION IN THIS CASE
    Defendant's petition arises from the application of Rule
    3:22-2, which permits collateral attack of a conviction based upon
    a claim of ineffective assistance of counsel within five years of
    the conviction.      See R. 3:22-12(a)(1); see also 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
    , 58-59 (1987).                  To
    establish a claim of ineffective assistance of counsel, a defendant
    must satisfy the two-part Strickland test by showing that: (1)
    "counsel made errors so serious that counsel was not functioning
    as   the    'counsel'   guaranteed       the   defendant   by      the     Sixth
    Amendment[,]" and (2) "the deficient performance prejudiced the
    defense."    Strickland, supra, 
    466 U.S. at 687
    , 
    104 S. Ct. at 2064
    ,
    
    80 L. Ed. 2d at
    693 (citing U.S. Const. amend. VI); Fritz, 
    supra,
    4                                   A-4085-15T3
    
    105 N.J. at 58-59
     (adopting the Strickland two-part test in New
    Jersey).
    Rule 3:22-10(b) provides that a defendant is only entitled
    to an evidentiary hearing if he or she establishes a prima facie
    case in support of PCR.       Moreover, there must be "material issues
    of disputed fact that cannot be resolved by reference to the
    existing record," and the court must determine that "an evidentiary
    hearing is necessary to resolve the claims for relief."                State v.
    Porter, 
    216 N.J. 343
    , 354 (2013) (quoting R. 3:22-10(b)).                      To
    establish a prima facie case, a defendant must demonstrate "the
    reasonable likelihood of succeeding under the test set forth in
    Strickland[.]"       State v. Preciose, 
    129 N.J. 451
    , 463 (1992).
    Having reviewed defendant's arguments in light of the law and
    the record, we affirm. Defendant essentially repeats the arguments
    he   made   before    Judge   Lydon.       Judge   Lydon    detailed   each    of
    defendant's arguments, explained why the arguments did not satisfy
    either prong of the Strickland test, and explained why defendant
    was not entitled to an evidentiary hearing.                We agree with Judge
    Lydon's analysis of the facts and the law.
    Affirmed.
    5                                A-4085-15T3
    

Document Info

Docket Number: A-4085-15T3

Filed Date: 10/31/2017

Precedential Status: Non-Precedential

Modified Date: 11/2/2017