STATE OF NEW JERSEY VS. ANTHONY MASSENBURG (10-09-2200, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5544-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY MASSENBURG,
a/k/a RICHARD ANDERSON,
FREDDRICK CONEY,
ANTHONY LONEY, RONALD A.
MASSENBURG, and TONY
MASSENBURG,
Defendant-Appellant.
_____________________________
Submitted October 21, 2019 – Decided November 8, 2019
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 10-09-2200.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kisha M. S. Hebbon, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Emily M. M. Pirro,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from a June 29, 2018 order denying his petition for
post-conviction relief (PCR). After conducting an evidentiary hearing, Judge
Martin Cronin entered the order and rendered a twenty-four page written
opinion. Defendant primarily maintains that his trial counsel rendered
ineffective assistance. We affirm.
Defendant was charged with committing various crimes arising out of a
home invasion. A jury found him guilty of attempted murder and two counts of
aggravated sexual assault, among other lesser offenses. 1 The sentencing judge
1
The indictment charged defendant with first-degree conspiracy to commit
murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (Count One); second-degree
conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-
1(b) (Count Two); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:11-3 (Count Three); second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1) (Count Four); second-degree possession of a weapon without a carry
permit, N.J.S.A. 2C:39-5(b) (Count Five); second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Counts Six, Ten and
Nineteen); second-degree conspiracy to commit aggravated sexual assault,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(a)(4) (Count Seven); first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (Counts Eight and Thirteen);
third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (Count
Nine); third-degree making terroristic threats, N.J.S.A. 2C:12-3(b) (Count
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imposed an aggregate prison term of sixty years, subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2. We affirmed the convictions, but remanded for the
judge to consider "all relevant aggravating and mitigating factors." State v.
Massenburg, No. A-2009-12 (App. Div. Jan. 12, 2015) (slip op. at *1). The
Supreme Court denied certification. State v. Massenburg, 221 N.J. 566 (2015).
The judge re-imposed the same sentence, which we affirmed. State v.
Massenburg, A-4150-15 (App. Div. Aug. 31, 2016) (slip op. at *1). The
Supreme Court then denied defendant's second petition for certification. State
v. Massenburg, 229 N.J. 143 (2017).
In his PCR petition, defendant primarily argued that trial counsel failed to
investigate his alibi defense; produce testimony from an alibi witness; dispute
evidence found at the scene; move to strike testimony; communicate sufficiently
with him; advise him of his right to testify at trial; move to suppress an
identification; and move to suppress physical evidence. He contended that
cumulatively, these alleged errors deprived him of his right to counsel. After
Eleven); third-degree criminal restraint, N.J.S.A. 2C:13-2 (Counts Twelve and
Fourteen); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:18-2(a)(1) (Count Fifteen); second-degree burglary, N.J.S.A.
2C:18-2(b)(1) (Count Sixteen); fourth-degree possession of a weapon for an
inappropriate purpose, N.J.S.A. 2C:39-5(d) (Count Seventeen); and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count
Eighteen). The jury acquitted him on Counts One, Two, Nine, and Fifteen.
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the hearing, the PCR judge denied the petition saying that "[t]o [defendant], the
truth may be altered or shaped to satisfy his needs at any given time."
On appeal, defendant argues:
POINT I
THE [PCR JUDGE] ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] BECAUSE
THERE WAS SUFFICIENT EVIDENCE
PRESENTED DURING THE EVIDENTIARY
HEARING TO PROVE THAT DEFENDANT WAS
DENIED THE RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.
A. The Prevailing Legal Principles Regarding Claims
Of Ineffective Assistance Of Counsel, Evidentiary
Hearings And Petitions For [PCR].
B. Trial Counsel Rendered Ineffective Legal
Representation By Virtue Of His Failure To Investigate
And Present Taynona Love As An Alibi Witness To
The Jury.
C. Trial Counsel Rendered Ineffective Legal
Representation By Virtue Of His Failure To
Sufficiently Communicate With Defendant And To
Honor Defendant's Desire To Testify At Trial.2
We conclude that these arguments lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set
2
Defendant additionally submitted a pro se supplemental brief on June 7, 2019,
which raised the same argument relating to his trial counsel's failure to inform
him of his right to testify.
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forth by Judge Cronin in his well-reasoned decision, and we add the following
brief remarks.
Three witnesses testified at the PCR hearing: an alleged alibi witness,
defendant, and his trial counsel. The PCR judge disbelieved defendant and
found his trial counsel credible. As to the alibi witness, the PCR judge, like the
trial judge, concluded that the witness was "equivocal concerning any specific
facts," and that she testified "inconsistently."
As the PCR judge noted, defendant admitted at the hearing that his
certification in support of his petition was false, that trial counsel followed up
on potential alibi witnesses, and that trial counsel considered his investigator's
interview of the alibi witness. The PCR judge held that trial counsel sufficiently
investigated defendant's alibi, and concluded defendant failed to meet
Strickland's two-prong test.
The PCR judge also found that trial counsel cautioned defendant not to
testify because of defendant's criminal history, which included multiple prior
convictions. The PCR judge noted that even the trial judge, in denying
defendant's new trial motion, acknowledged that defendant was "not a novice to
the criminal justice system." Along those lines, the trial judge stated "[t]o
suggest that [defendant] did not understand his right to testify or remain silent
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defies logic." We conclude the judge's findings are supported by the record, and
his legal conclusions are unassailable.
Affirmed.
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