STATE OF NEW JERSEY VS. KENNETH R. BANKS (10-02-0206, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1551-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH R. BANKS, a/k/a
KEVIN BANKS, RAQUAN
BANKS, and EDDIE JOHNSON,
Defendant-Appellant.
_____________________________
Submitted December 13, 2018 – Decided May 29, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-02-0206.
Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Albright, Designated Counsel;
William P. Welaj, on the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Michele C.
Buckley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kenneth R. Banks appeals from the June 23, 2017 Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
I
In May 2012, a jury convicted defendant of first-degree robbery, N.J.S.A.
2C:15-1; second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree
possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e).
After merging the weapons offense into the robbery conviction, the court
imposed a mandatory extended term of imprisonment of thirty years for the
robbery conviction, subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. The court imposed a consecutive, discretionary extended term of
imprisonment of twenty years for the eluding conviction, with a ten-year period
of parole ineligibility.
Defendant appealed and we affirmed his convictions. State v. Banks, No.
A-1896-12 (App. Div. Oct. 30, 2015). However, we vacated his sentence and
remanded the matter to the trial court for re-sentencing, because N.J.S.A. 2C:44-
5(a)(2) prohibits imposition of both a mandatory and a discretionary extended
term in the same sentencing proceeding, State v. Robinson, 217 N.J. 594, 612
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(2014); see also State v. Banks, No. A-1896-12 (App. Div. Oct. 30, 2015). On
February 17, 2016, the Supreme Court denied defendant's petition for
certification. State v. Banks, 224 N.J. 246 (2016).
In September 2016, the trial court imposed a twenty-year term of
imprisonment for the robbery conviction, with an eighty-five percent period of
parole disqualification pursuant to NERA. On the eluding conviction, the trial
court imposed a consecutive ten-year term of imprisonment, with a five-year
period of parole ineligibility. Defendant did not file a direct appeal from the
sentence imposed following the remand.
The evidence pertinent to the issues on defendant's appeal from the order
denying him post-conviction relief is as follows. After purchasing items of
clothing at a local store, fourteen-year old J.M.1 and twelve-year-old V.M.
entered a park in Elizabeth accompanied by their mother, G.S.-M. (mother).
J.M., who was lagging behind her sister and mother, was approached by a man
who asked her for "a dollar and change." J.M. told him she did not have any
money. He and another man who then appeared told her to give them all of her
money, and the taller of the two men pointed a gun at her stomach. Although
the gun was, in fact, a starter pistol, J.M. believed it to be real.
1
We use initials to protect the identity of the victim and her family.
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The shorter man took J.M.'s shopping bags, bus pass, cell phone, cell
phone charger, jewelry, and purse. The assailants then fled the scene. The
mother saw them enter a "silverfish" or "light-colored" car, and J.M. used her
mother's cell phone to call the police, who arrived minutes later. J.M. described
the assailants' appearance to the police, and provided other details. One of the
officers conducted a search of the area in his patrol car and spotted a silver car
with two male occupants. He was able to ascertain their upper-body clothing fit
J.M.'s description of what she claimed the assailants wore during the robbery.
The officer called for back-up assistance, maneuvered his patrol car
behind the silver vehicle, and activated his lights and siren in an attempt to
effectuate a motor vehicle stop. Instead, the silver car accelerated, and a chase
ensued. The silver car finally came to a stop when it crashed. The police
removed a person later identified as defendant from the driver's side of the car
and placed him under arrest. Co-defendant Andre Nance was apprehended when
he stepped out of the car.
A search of the vehicle revealed two shopping bags on which were affixed
the logo of the store from which J.M. had purchased clothing just before the
robbery, as well as items of clothing that matched J.M.'s description of what one
of the assailants was wearing during the robbery. In co-defendant's pocket was
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a phone charger and a bus pass, and a starter pistol was found on the ground next
to the spot where co-defendant had stepped out of the silver car after the crash.
Later that day, J.M. viewed photographic arrays at the police station and,
after seeing Banks's photograph in the array, identified him as one of the
perpetrators. At trial, J.M. identified defendant in court, as well as the starter
pistol recovered next to the car after the crash and other items seized from the
car that belonged to her. She also testified that the clothing defendants were
wearing when arrested was what they were wearing at the time of the robbery.
Defendant testified. He stated he was in Elizabeth and on his way home
to Newark when he saw the co-defendant, a friend from his neighborhood.
Defendant stopped to give him a ride home; when the co-defendant entered the
car, he had a bag in his hand. When defendant made an illegal U-turn, the police
attempted to pull him over. Defendant panicked and tried to elude the police
because he was driving without a license and feared such action would result in
a parole violation or the loss of his car. Banks denied having any knowledge of
the robbery or the gun eventually found in the vicinity of the car when he was
arrested.
As stated, the jury subsequently convicted defendant of the three offenses
with which he had been charged. Following our decision on his direct appeal
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and his resentencing on remand, on March 21, 2016, defendant filed a petition
seeking post-conviction relief. Of pertinence to the issues before us are two
allegations of ineffectiveness of counsel defendant made before the PCR court.
Defendant's first allegation was trial counsel failed to object to the trial
court's jury charge on the issue of flight. Citing State v. Mann, 132 N.J. 410(1993), defendant noted our Supreme Court requires that, "[i]f a defendant offers
an explanation for [his] departure, the trial court should instruct the jury that if
it finds the defendant's explanation credible, it should not draw any inference of
the defendant's consciousness of guilt from the defendant's departure." Id. at
421.
Defendant contended the trial court did not appropriately instruct the jury
on this latter point and trial counsel failed to bring such omission to the court 's
attention. The subject charge the trial court read to the jury was as follows :
Now there has been some testimony in the case
which you may infer that the defendant fled shortly
after the alleged commission of the crime. The
defendant denies any flight or the defendant denies that
the acts constituted flight.
The question of whether the defendant fled after
the commission of the crime is another question of fact
for your determination. Mere departure from a place
where a crime has been committed does not constitute
flight.
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If you find that the defendant, fearing that an
accusation or arrest would be made against him on the
charge involved in the indictment, took refuge in flight
for the purpose of evading the accusation or arrest on
that charge, then you may consider such flight in
connection with all of the other evidence in the case as
an indication [of] proof of consciousness of guilt.
Flight may only be considered as evidence of
consciousness of guilt if you should determine that the
defendant's purpose in leaving was to evade accusation
or arrest for the offense charged in the indictment.
There has been some testimony in the case from
which you may infer that the defendant fled shortly
after the alleged commission of the crime of robbery.
The defendant denies committing the offense of
robbery.
If after all of the evidence you find that the
defendant, fearing that an accusation or arrest would be
made against him on the charge involved in the
indictment, took refuge in flight for the purpose of
evading the accusation or arrest, then you may consider
such flight in connection with all of the other evidence
in the case as an indication or proof of consciousness of
guilt.
It is for you, as judges of the facts, to decide
whether or not evidence of flight shows a consciousness
of guilt and the weight to be given such evidence in
light of all of the other evidence in the case.
[(Emphasis added).]
The PCR court found this allegation of ineffectiveness of counsel barred
pursuant to Rule 3:22-4(a)(1) because, on direct appeal, defendant could have
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but did not assert that the court's jury charge on flight was erroneous, warranting
relief. Therefore, the PCR court determined, Rule 3:22-4(a)(1) procedurally
barred defendant from seeking the subject relief in a proceeding for post-
conviction relief.
The second allegation defendant asserted before the PCR court was that
trial counsel was ineffective because, after the State served defendant with a
computer aided dispatch (CAD) report in the middle of trial and the court
declined to provide counsel sufficient time to review the report, trial counsel
failed to request a mistrial. The PCR court determined this allegation was barred
pursuant to Rule 3:22-5 because, on direct appeal, defendant raised a sufficiently
similar claim.
II
On appeal, defendant presents the following issues for our consideration.
POINT I: THE POST-CONVICTION RELIEF
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 FROM
TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
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HEARINGS AND PETITIONS FOR POST-
CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION
FROM TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO OBJECT TO THE
TRIAL COURT'S INADEQUATE,
INSUFFICIENT AND MISLEADING CHARGE
TO THE JURY WITH RESPECT TO FLIGHT.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION
FROM TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO REQUEST A
MISTRIAL WHEN THE STATE FAILED TO
PRODUCE A CAD TICKET UNTIL THE
MIDDLE OF TRIAL.
POINT II: THE POST-CONVICTION RELIEF
COURT ERRED IN DENYING THE DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF, IN
PART, ON PROCEDURAL GROUNDS PURSUANT
TO RULE 3:22-4.
POINT III: THE POST-CONVICTION RELIEF
COURT ERRED IN REJECTING THE
DEFENDANT'S PETITION, IN PART, ON
PROCEDURAL GROUNDS PURSUANT TO RULE
3:22-5.
Defendant filed a supplemental brief as a self-represented litigant; it is the
same brief he filed in support of his petition when before the PCR court. In his
brief he presents the following arguments:
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POINT I: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR WHEN IT FAILED TO
INSTRUCT THE JURY THAT IF IT FOUND
DEFENDANT'S EXPLANATION FOR THE
DEPARTURE CREDIBLE, IT SHOULD NOT DRAW
ANY INFERENCE OF DEFENDANT'S
CONSCIOUSNESS OF GUILT.
POINT II: PETITIONER WAS DENIED HIS 4TH,
5TH, AND 14TH AMENDMENT RIGHTS UNDER
BOTH THE STATE AND FEDERAL
CONSTITUTIONS, DUE TO SELECTIVE
ENFORCEMENT AND EGREGIOUS ACTS OF
RACIAL PROFILING.
POINTS III: PETITIONER WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF HIS 6TH AND 14TH AMENDMENT
RIGHTS UNDER THE CONSTITUTION.
To establish an ineffective assistance of counsel claim, a defendant must
satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668,
687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52
(1987). First, a defendant must show "that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment." Id. at 52 (quoting Strickland, 466 U.S. at 687).
To satisfy prong one, [a defendant] ha[s] to "overcome
a 'strong presumption' that counsel exercised
'reasonable professional judgment' and 'sound trial
strategy' in fulfilling his responsibilities." "[I]f counsel
makes a thorough investigation of the law and facts and
considers all likely options, counsel's trial strategy is
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'virtually unchallengeable.'" Mere dissatisfaction with
"'a counsel's exercise of judgment'" is insufficient to
warrant overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013) (third
alteration in original) (citations omitted).]
Second, a defendant must prove he suffered prejudice due to counsel's
deficient performance. Strickland, 466 U.S. at 687. A defendant must show by
a "reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015)
(quoting Strickland, 466 U.S. at 694). "If [a] defendant establishes one prong
of the Strickland-Fritz standard, but not the other, his claim will be
unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
In the instant appeal, defendant does not dispute that on direct appeal he
could have asserted the jury charge on flight was defective, as well as that trial
counsel was ineffective for failing to object to the charge, given the resolution
of the latter contention did not rely upon evidence or information outside of the
trial record. See State v. Hess, 207 N.J. 123, 145 (2011) ("we routinely decline
to entertain ineffective-assistance-of-counsel claims on direct appeal because
those claims 'involve allegations and evidence that lie outside the trial record.'")
(quoting State v. Preciose, 129 N.J. 451, 460 (1992)). However, defendant
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claims appellate counsel was ineffective because she failed to raise these
contentions on direct appeal. Defendant also continues to maintain trial counsel
was ineffective for failing to object to the jury charge, arguing had trial counsel
done so, the trial court may have responded to trial counsel's objections by
correcting the charge. Therefore, defendant contends, the PCR court erred when
it denied him relief pursuant to Rule 3:22-4(a)(1).
Although the PCR court did not rule on whether appellate counsel was
ineffective, in the interest of judicial economy, see State v. Carrion-Collazo, 221
N.J. Super. 103, 113 (App. Div. 1987), we address and dispose of this
contention. In our view, even if appellate and trial counsel were ineffective, a
decision we need not reach, defendant cannot show their alleged omissions
fulfill the second prong of the Strickland test – that defendant suffered prejudice
due to counsels' deficient performance.
First, in its charge on flight, the court instructed the jury that flight may
only be considered as evidence of consciousness of guilt should the jury
"determine that defendant's purpose in leaving was to evade accusation or arrest
for the offense charged in the indictment." (Emphasis added). This instruction
provided "sufficient guidance" to the jury and did not create any "risk that the
. . . ultimate determination of guilt or innocence [was] based on speculation,
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misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991).
We also presume the jury followed the court's instruction. State v. Burns, 192
N.J. 312, 335 (2007). Accordingly, we are satisfied the jury would not have
inferred consciousness of guilt of robbery and possession of an imitation firearm
for an unlawful purpose if it determined defendant's reason for eluding the police
was to avoid being found driving without a license, a parole violation, and losing
possession of his car.
Second, as we found in our decision on direct appeal, the evidence against
defendant was overwhelming. We noted J.M. identified defendant shortly after
the robbery and at trial. The starter pistol was found next to and the proceeds
of the robbery discovered in defendant's car. Therefore, even if both trial and
appellate counsel were ineffective for the reasons alleged, because the subject
jury instruction was sufficient and the evidence against defendant
overwhelming, defendant cannot fulfill the second prong of the Strickland test.
Defendant contends the State failed to provide him a particular CAD
report until the middle of trial. He claims the trial court gave counsel only one
day to review the report. According to defendant, when that one-day period
expired, the trial court denied counsel's request for additional time to review the
report. Defendant argues counsel was ineffective because he did not seek a
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mistrial when denied more time to review the report. However, the following
passage from the decision we issued on defendant's direct appeal exposes this
allegation of ineffectiveness as being factually unsupported. We stated:
Banks argues that the State's failure to produce a
second [CAD] report from the robbery until midway
through the trial, combined with the judge's grant of
only a short adjournment to investigate, requires
reversal. He further contends that the judge should have
granted his motion for a new trial on these grounds.
Our review of the record, however, reveals that it
was never firmly established that the State failed to
provide this second CAD report in discovery.
Moreover, accepting arguendo defendant's assertion
that it had not been produced, the judge asked defense
counsel if he wanted a curative instruction when the
report was referenced during Scharpnick's testimony.
Counsel demurred and asked for some "additional time"
to evaluate the document.
The judge adjourned trial for the balance of that
day, and, when proceedings re-commenced the
following day, Banks's counsel announced he was
ready to proceed and would address any unresolved
issues regarding the second CAD report through the
cross-examination of Scharpnick and Alvarez. We find
no error in the judge's handling of the issue, particularly
since, even now, defendant cannot specifically identify
any prejudice resulting from his late receipt of the CAD
report.
[State v. Banks, No. 1896-12 (App. Div. Oct. 30,
2015) (slip op. at 27-28).]
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In addition, as is also evident from the above passage, an essentially
identical claim was raised and decided on direct appeal, precluding the subject
claim asserted in this PCR proceeding from being considered. See R. 3:22-5.
We have considered defendant's remaining arguments and conclude they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
In summary, we are satisfied from our review of the record that defendant
failed to make a prima facie showing of ineffectiveness of trial or appellate
counsel within the Strickland test. Accordingly, for the reasons stated, the post-
conviction relief defendant seeks was appropriately denied.
Affirmed.
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