STATE OF NEW JERSEY VS. STANFORD YOUGHÂ (06-04-0402, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3710-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STANFORD YOUGH,
Defendant-Appellant.
___________________________________
Submitted October 17, 2017 – Decided October 27, 2017
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Indictment No. 06-04-0402.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
At the conclusion of a 2007 jury trial, defendant was
convicted of second-degree robbery and, later that same year,
sentenced as a persistent offender to an extended fifteen-year
prison term, subject to an eighty-five percent period of parole
ineligibility. We reversed his conviction and remanded for a new
trial. State v. Yough, No. A-3832-07 (App. Div. 2010). The Supreme
Court, however, reversed our determination and remanded for our
consideration of other issues we previously found unnecessary to
decide. State v. Yough, 208 N.J. 385 (2011). We then rejected
defendant's remaining arguments and affirmed the judgment of
conviction. State v. Yough, No. A-3832-07 (App. Div. 2013). And
the Supreme Court denied defendant's subsequent petition for
certification. 214 N.J. 176 (2013).
Defendant filed a pro se post-conviction relief (PCR)
petition in 2014. The judge1 heard argument and denied the PCR
petition for reasons set forth in a thorough oral decision in
2016.
Defendant appeals, arguing in a single point:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
INVESTIGATE AN ALIBI DEFENSE.
We find insufficient merit in this argument to warrant further
discussion in a written opinion, R. 2:11-3(e)(2), except to add a
few brief comments.
1
The PCR judge was also the trial judge.
2 A-3710-15T3
Defendant argued to the PCR judge that he was deprived of the
effective assistance of counsel because his trial attorney failed
to investigate an alibi defense. The robbery occurred in Paterson
at approximately 1:00 a.m., on October 10, 2005, and, as part of
his PCR petition, defendant provided his sister's affidavit. She
asserted that defendant "could not have committed the crime for
which he was convicted" because, during that time frame,
I would come home from work at late hours
during the early morning (12:30 a.m. to 1:00
a.m.) and my brother would be at home to open
the door and would always be there around the
same time, he would go to his room and go to
bed and go [to] work in the morning. He did
this regularly as part of his routine and I
know he did this during the month of October
2005.
Argument during the PCR hearing revealed that defendant and
his sister shared a home that was approximately 1.3 miles from the
robbery scene. As the judge recognized when he explored the
affidavit's assertions,2 defendant's sister did not directly state
defendant was home when the robbery occurred on October 10, 2005,
only that "during the month of October 2005" he "routine[ly]"
would be at home around that time. Even if the record contained a
2
Although the PCR petition was filed more than five years from
the entry of the judgment of conviction, the judge did not invoke
the time-bar contained in Rule 3:22-12(a), but instead considered
the merits.
3 A-3710-15T3
sworn statement to suggest that what defendant's sister said in
her affidavit was conveyed to defense counsel prior to trial3 –
the attorney, after all, could not be expected to investigate an
alibi defense that was not suggested by the information provided
by defendant or others – we find no merit in defendant's contention
that the judge should have conducted an evidentiary hearing into
these allegations. We discern from his oral decision that the
judge assumed the truth of defendant's sister's affidavit but
found that acceptance of those assertions at face value did not
present an effective alibi defense. Indeed, like the experienced
trial judge, we agree that even if the attorney knew of this
information he would have reasonably viewed this alleged alibi
defense as tactically unfeasible. As the judge recognized,
testimony from defendant's sister in conformity with this
affidavit would actually have placed defendant within close
proximity of the crime scene without the benefit of a definitive
assertion that she saw him at their home at the time the robbery
occurred.
3
The only sworn statement that might suggest this fact – the
inclusion in the sister's affidavit of her statement that "[h]is
attorney was asked by him to interview me to be a witness at his
trial" – would not have been admissible.
4 A-3710-15T3
For these reasons and substantially for the reasons set forth
by the judge in his cogent oral decision, we conclude that
defendant failed to demonstrate a prima facie case of
ineffectiveness under the Strickland/Fritz4 test.
Affirmed.
4
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).
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