STATE OF NEW JERSEY VS. MARIO S. LYN (14-10-2609, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0249-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARIO S. LYN, a/k/a
MARIL LYN, MARIO S.
LYN, JR.,
Defendant-Appellant.
_______________________
Submitted February 22, 2021 – Decided March 11, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 14-10-2609.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from a May 3, 2019 order denying his petition for post-
conviction relief (PCR) without an evidentiary hearing.1 Defendant maintains he
was entitled to an evidentiary hearing as to whether his trial counsel's failure to
object to jury charges, purportedly lacking case-specific information, amounted to
ineffective assistance. Judge James W. Donohue entered the order under review and
rendered a written opinion.
On appeal, defendant raises the following argument for this court's
consideration:
POINT I
THE PCR [JUDGE] ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING TRIAL
COUNSEL'S FAILURE TO OBJECT TO AN
ERRONEOUS JURY CHARGE THAT FAILED TO
INCLUDE CASE[-]SPECIFIC INFORMATION FOR
LIGHTING AND PRIOR DESCRIPTION.
We affirm substantially for the reasons set forth in Judge Donohue's written
opinion. We add the following remarks.
1
A jury found defendant guilty of second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1(a)(2); and one count of first-degree robbery,
N.J.S.A. 2C:15-1. We affirmed defendant's convictions and sentence. State v.
Lyn, No. A-3226-16 (App. Div. July 6, 2018).
A-0249-19
2
When a PCR judge does not hold an evidentiary hearing, this court's standard
of review is de novo as to both the factual inferences drawn by the judge from the
record and the judge's legal conclusions. State v. Blake, 444 N.J. Super. 285, 294
(App. Div. 2016).
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in State
v. Fritz, 105 N.J. 42, 58 (1987). To satisfy the first Strickland/Fritz prong, a
defendant must establish that his counsel "made errors so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687. The defendant must rebut the "strong presumption that
counsel's conduct [fell] within the wide range of reasonable professional
assistance[.]" Id. at 689.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for the counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine the outcome." Id. at 694.
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3
A defendant is only entitled to an evidentiary hearing when he "'has presented
a prima facie [claim] in support of [PCR],'" meaning that a defendant must
demonstrate "a reasonable likelihood that his . . . claim will ultimately succeed on
the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting State v. Preciose,
129 N.J. 451, 463 (1992)). A defendant must "do more than make bald assertions
that he was denied the effective assistance of counsel" to establish a prima facie
claim entitling him to an evidentiary hearing. State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999). A defendant bears the burden of establishing a prima
facie claim. State v. Gaitan, 209 N.J. 339, 350 (2012). This court "should view the
facts in the light most favorable to a defendant to determine whether a defendant has
established a prima facie claim." Preciose, 129 N.J. at 463-64.
"A PCR petition is cognizable if it is based upon a '[s]ubstantial denial in the
conviction proceedings of defendant's rights under the Constitution of the United
States or laws of the State of New Jersey.'" State v. Gideon, 244 N.J. 538, 549 (2021)
(quoting R. 3:22-2(a)). With some exceptions, "a ground for relief that was not
raised in the conviction proceedings or any appeal from the conviction 'is barred
from assertion in a proceeding under [Rule 3:22-4(a)].'" State v. Reevey, 417 N.J.
Super. 134, 148 (App. Div. 2010) (quoting R. 3:22-4(a)). Those exceptions are that:
(1) the ground not previously asserted could not have been reasonably raised in any
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4
prior proceeding; (2) enforcement of the bar, including one for ineffective assistance,
would result in a fundamental injustice; or (3) denial of relief would be contrary to
a new rule of constitutional law under the United States or State of New Jersey. R.
3:22-4(a)(1)-(3).
On direct appeal, defendant raised the argument that "the jury charges . . .
were inadequate because they consisted of generic statements without any case-
specific information based upon the evidence presented at trial." Lyn, (slip op. at
1). We rejected that argument, concluding that "there was nothing clearly capable
of producing an unjust result from the judge's charge to the jury, which tracked the
[M]odel [J]ury [C]harges." Id. at 5. The PCR judge correctly observed that
defendant's "appeal dealt directly with issues related to the jury charge that
[defendant] is now raising again under the guise of a claim of ineffective assistance
of counsel in the context of a petition for [PCR]." The PCR judge also observed that
defendant "ha[d] not adequately established that the basis for relief could not
reasonably have been raised in any prior proceeding" or that any other exception
under Rule 3:22-4(a) is applicable to his claim. Defendant's claim is therefore
procedurally barred.
Even assuming that defendant's claim could not have been raised on direct
appeal, the PCR judge again correctly observed that defendant failed to establish a
A-0249-19
5
prima facie claim of ineffective assistance of counsel to warrant an evidentiary
hearing. Defendant put forth bald assertions rather than evidence that trial counsel's
decision not to object to the jury charge was unreasonable or that an objection would
have had led the jury to reach a different conclusion.
Affirmed.
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6