State of New Jersey v. Brian R. Auxer ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1676-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN R. AUXER,
Defendant-Appellant.
_______________________
Argued May 13, 2024 – Decided July 18, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 16-08-1933.
David J. Reich, Designated Counsel, argued the cause
for appellant (Jennifer Nicole Sellitti, Public Defender,
attorney; David J. Reich, on the briefs).
Linda Anne Shashoua, Assistant Prosecutor, argued the
cause for respondent (William E. Reynolds, Atlantic
County Prosecutor, attorney; John J. Santoliquido,
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
A jury convicted defendant Brian Auxer of second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1), and he was sentenced to eight years in prison
with periods of parole ineligibility and parole supervision as prescribed by the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from his
conviction. He also contends that his prior counsel provided ineffective
assistance. Having reviewed all his arguments in light of the record and law,
we reject them and affirm his conviction.
I.
In August 2016, when defendant was twenty-nine years old, he was
charged with physically assaulting G.P. (Gloria), a then-sixty-four-year-old
woman.1 We discern the facts from the trial record. At trial, the State presented
testimony from six witnesses: Gloria, Dr. Brett Greenfield, two of Gloria's
neighbors, and two responding police officers. The State also introduced
various exhibits, including Gloria's medical records from her treatment after the
1
We use initials and a fictitious name for the victim to protect her privacy
interests. See R. 1:38-3(c)(12).
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assault. Defendant elected not to testify, and he called one witness: Linda
Auxer (Linda), his mother.2
Gloria owned a home in Absecon. In early 2015, she allowed Linda, who
was then her coworker, to live with her. Several weeks later, defendant lost his
job and moved in with Gloria and Linda.
Gloria testified that on the evening of July 3, 2016, she and Linda returned
home after shopping. As Gloria pulled into the driveway, she saw defendant
sitting on the porch with the living room windows open and the air conditioner
running. Gloria explained that defendant had previously opened the windows
while the air conditioner was running. Gloria made a comment to Linda, and
Linda went to speak with defendant.
As Gloria was smoking a cigarette and calling her sister in the garage, she
heard Linda and defendant arguing. Shortly thereafter, Linda left the home to
run an errand. Several minutes later, as Gloria was walking by defendant in an
area near the kitchen, defendant asked her where his mother was. Gloria told
defendant she did not know, and defendant accused Gloria of lying. Gloria then
walked upstairs, and defendant followed her. When Gloria got to her bedroom,
2
Because Linda Auxer shares a last name with defendant, we use her first name
to avoid confusion. In doing so, we intend no disrespect.
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she tried to close the door, but defendant pushed it open. Gloria testified
defendant then began to yell at her and hit her several times, including hitting
her repeatedly on the right side of her rib cage. Gloria wound up on the floor
with a bloody nose and cuts on her face.
After defendant left her, Gloria got up and went to her next-door
neighbors' house. The neighbors testified that Gloria appeared at their home
bleeding profusely from cuts on her face and told them that defendant had
attacked her. One of the neighbors then called 911.
Several police officers and an ambulance responded. Gloria reported the
assault to the officers, and she was taken to the hospital.
The police officers then went to Gloria's house, where they found the front
door locked and heard loud music being played inside the home. The officers
entered the house through a rear sliding door. After announcing their presence,
the officers searched the home but initially found no one. An officer then went
to look in the attic and, on the way, saw defendant standing near the kitchen.
Defendant was arrested.
At the hospital, Gloria was treated by Dr. Greenfield. At trial, Dr.
Greenfield testified that he ordered a computed axial tomography (CAT) scan
of Gloria's head because of the injuries to her face that he observed. The CAT
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scan showed that Gloria had a broken nose. Dr. Greenfield also testified that
Gloria had a fractured rib. Additionally, the State entered into evidence the
hospital records of Gloria's treatment at the hospital, including the CAT scan.
Testifying for the defense, Linda stated that on the morning of July 3,
2016, Gloria had shown her a bruise on her chest and explained that she got the
bruise by leaning on a table at work. In rebuttal, the State recalled Dr.
Greenfield, who testified that Gloria had no bruises on her chest when he later
examined her at the hospital.
After hearing the testimony and considering the evidence, the jury
convicted defendant of second-degree aggravated assault. Defendant was
thereafter sentenced to eight years in prison subject to NERA.
Defendant retained new counsel and has subsequently certified that he
directed his counsel to appeal both his conviction and sentence. His initial
appellate counsel appealed only the sentence. We heard that appeal on January
9, 2019, at an excessive sentencing hearing. That same day, we affirmed
defendant's sentence. State v. Auxer, No. A-4942-17 (App. Div. Jan. 9, 2019).
Approximately a year later, in January 2020, defendant, representing
himself, filed papers seeking to appeal his conviction and alleging that both his
trial and appellate counsel had been ineffective. The Law Division treated that
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submission as a petition for post-conviction relief (PCR). Defendant was then
assigned counsel, who filed additional papers on defendant's behalf. After
hearing oral argument, on June 3, 2021, the court denied defendant's presumed
PCR petition without an evidentiary hearing.
Defendant appealed. On November 7, 2022, we reversed the January 3,
2021 order and permitted defendant to file a direct appeal of his conviction.
State v. Auxer, No. A-3636-20 (App. Div. Nov. 7, 2022). We accepted
defendant's unrebutted representation that he had directed his first appellate
counsel to appeal his conviction. We, therefore, did not decide or address
defendant's claims of ineffective assistance of counsel. Instead, we allowed
defendant to raise his claims of ineffective assistance of counsel when he
appealed his conviction.
This appeal then followed. Defendant also moved for bail pending this
appeal. We granted that motion and directed the trial court to release defendant
on bail while this appeal was being considered. State v. Auxer, No. A-1676-22
(App. Div. July 14, 2023).
II.
On this appeal, defendant directly appeals from his aggravated assault
conviction. He also contends that he is entitled to PCR because his trial and
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appellate counsel provided ineffective assistance. In that regard, through his
counsel, defendant makes seven arguments, which he articulates as follows:
POINT I: THE TRIAL COURT COMMITTED
HARMFUL ERROR IN ALLOWING THE
ADMISSION INTO EVIDENCE OF A MORE THAN
[TEN]-YEAR-OLD CONVICTION IN THE
ABSENCE OF ANY BASIS FOR CONCLUDING
THAT THE PRESUMPTION OF INADMISSIBILITY
HAD BEEN REBUTTED
POINT II: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO RETAIN A MEDICAL EXPERT TO
ASSESS WHETHER SERIOUS BODILY INJURIES
HAD BEEN INFLICTED UPON [GLORIA]
POINT III: THE COURT COMMITTED PLAIN
ERROR IN ALLOWING HEARSAY TESTIMONY
THAT A CAT SCAN OF [GLORIA] INDICATED
THAT SHE HAD A COMMINUTED NASAL BONE
FRACTURE
POINT IV: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO OBJECT TO HEARSAY
TESTIMONY THAT A CAT SCAN OF [GLORIA]
INDICATED THAT SHE HAD A COMMINUTED
NASAL BONE FRACTURE
POINT V: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO OBJECT TO THE ASSISTANT
PROSECUTOR'S MISCONDUCT
POINT VI: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO MAKE SUFFICIENT USE OF
AVAILABLE PEREMPTORY CHALLENGES
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POINT VII: A REVERSAL IS WARRANTED IN
VIEW OF THE CUMULATIVE ERRORS
COMMITTED
Defendant has also filed a pro se supplemental brief in which he makes
the following four arguments:
POINT I: Claim of ineffective assistance of counsel
whereupon trial counsel failed to use peremptory
challenges to excuse biased jurors of which violated my
right to a fair and impartial trial. Appellate as well as
[PCR] counsel failed to investigate Voir[] Dire issues
in wake of such.
[POINT] II: Damon Tyner's continued participation as
Head Prosecutor [overseeing] my case after
transitioning from . . . being my presiding judge
violates not only the current conflict of interest laws
under N.J.S.A[.] 52:13D but also the judicial [canons],
court rules, and most importantly [RPC] 1.12(a).
POINT III: Verifiable direct contributing factors to
prove ineffective assistance of counsel and a perpetual
pattern of gross neglect ([RPC] 1.1) by prior counsel.
POINT IV: Failure of the Atlantic County Superior
[C]ourt to produce a [s]tatistically valid random cross[-
]section from the community of potential jurors.
Three of defendant's eleven arguments directly challenge his conviction.
We will address those arguments first. Most of defendant's other arguments
raise claims of ineffective assistance of counsel, and we will address those
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contentions second. Finally, we will address defendant's contentions concerning
Damon Tyner and his cumulative errors argument.
III.
Defendant contends through his counsel that the trial court committed two
errors that warrant reversal of his conviction. First, he argues that the trial court
erred in granting the State's motion to use a prior conviction on cross-
examination if defendant elected to testify. Second, he asserts that the trial court
committed plain error in allowing Dr. Greenfield to testify that the CAT scan
revealed that Gloria had suffered a fracture of her nose. In his pro se brief,
defendant also asserts that the jury selection process did not produce a random
selection of his peers.
Appellate courts defer to trial courts' evidentiary rulings absent an abuse
of discretion. State v. Garcia, 245 N.J. 412, 430 (2021); State v. Higgs, 253 N.J.
333, 367 (2023) (explaining that a trial court's admission of a defendant's prior
conviction is reviewed for an abuse of discretion). We will "not substitute [our]
judgment unless the evidentiary ruling is 'so wide of the mark' that it constitutes
'a clear error in judgment.'" Garcia, 245 N.J. at 430 (quoting State v. Medina,
242 N.J. 397, 412 (2020)).
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When an argument was not raised with the trial court, we review the issue
for plain error. See R. 2:10-2; State v. Singh, 245 N.J. 1, 13 (2021) (explaining
that "[w]hen a defendant does not object to an alleged error at trial, such error
is reviewed under the plain error standard"). "[A]n unchallenged error
constitutes plain error if it was 'clearly capable of producing an unjust result,'"
Singh, 245 N.J. at 13 (quoting R. 2:10-2), and "raise[s] 'a reasonable doubt . . .
as to whether the error led the jury to a result it otherwise might not have
reached,'" State v. Funderburg, 225 N.J. 66, 79 (2016) (omission in original)
(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). When applying the plain
error standard, courts evaluate the error "in light of the overall strength of the
State's case." State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (quoting State
v. Galicia, 210 N.J. 364, 388 (2012)).
1. The Admission of Defendant's Prior Conviction.
N.J.R.E. 609 governs the admissibility of prior convictions for the purpose
of impeaching a witness. If more than ten years "have passed since the
conviction or the witness's release from confinement for the conviction,
whichever is later, the conviction 'is admissible only if the court determines that
its probative value outweighs its prejudicial effect.'" Higgs, 253 N.J. at 368
(quoting N.J.R.E. 609(b)(1)). The party seeking to introduce the conviction
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must show that its probative value outweighs its prejudicial effect. Ibid. In
making an admissibility determination, the trial court can consider (1) "whether
there are intervening convictions for crimes or offenses, and if so, the number,
nature, and seriousness of those crimes or offenses," (2) "whether the conviction
involved a crime of dishonesty, lack of veracity or fraud," (3) "how remote the
conviction is in time," and (4) "the seriousness of the crime." State v. R.J.M.,
453 N.J. Super. 261, 269 (App. Div. 2018) (quoting N.J.R.E. 609(b)(2)). "The
key to exclusion is remoteness," which "cannot ordinarily be determined by the
passage of time alone." State v. Murphy, 412 N.J. Super. 553, 564 (App. Div.
2010) (quoting State v. Sands, 76 N.J. 127, 144 (1978)).
If a court erroneously rules that evidence of a defendant's prior conviction
is admissible, and defendant thereafter chooses not to testify, that ruling may
constitute reversible error unless the State's evidence at trial can fairly be
described as "overwhelming." R.J.M., 453 N.J. Super. at 271. In R.J.M., we
held that a trial court's erroneous admission of a conviction, which was from
more than ten years before the defendant's trial, was reversible error because in
that case, the issues at trial "hinged on the jury's evaluation of witness
credibility," the "testimony of the State's witnesses was contradictory in some
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respects," and security videos did not "entirely support [the State's witnesses']
version of events." Id. at 270.
In other cases, where a defendant chooses to testify and that testimony
would have been inconsistent with other testimony, the erroneous admission of
a prior conviction may also be grounds for reversal. See Murphy, 412 N.J.
Super. at 566. In Murphy, we held that because "the probative value of [the
defendant's prior conviction] was quite slight" and the other witnesses'
testimony was not "inherently more believable than the version [of events]
defendant offered," admission of the evidence of the prior conviction was
reversible error because it "had the clear capacity to serve as an unfair tiebreaker
that handed the State a victory it might otherwise not have achieved ." Ibid.At the close of the State's case in defendant's trial, the State moved for
permission to use a prior conviction to impeach defendant if he elected to testify.
In that regard, the State sought to admit evidence that in February 2007,
defendant had been convicted of third-degree terroristic threats. The State
acknowledged that the conviction should be sanitized and requested that , if
defendant elected to testify, the jury should be informed that he had previously
been convicted of a third-degree felony and had been sentenced to two years of
probation with fifty hours of community service. The State went on to argue
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that the probative value of the 2007 conviction was not outweighed by its
prejudicial effect. Defense counsel responded by objecting and arguing that the
prejudicial effect of allowing the 2007 conviction would be "extreme" and the
conviction itself had little probative value.
The trial court analyzed the conviction under N.J.R.E. 609(b) as a prior
conviction that occurred more than ten years before trial. The court then quoted
the Rule, focusing on the determination of whether the 2007 conviction would
have more probative value than prejudicial effect. The trial court found that the
State had met its burden because the prior conviction had more probative value
than prejudicial effect. While the court did not go into extensive detail in
making that finding, a review of the court's reasoning demonstrates that it
viewed the conviction as more probative of defendant's credibility and,
therefore, not so prejudicial that it should be excluded.
Having reviewed the trial record, we discern no reversible error in the
court's decision to allow the State to use the prior conviction if defendant
testified. In making this ruling, we also note that the State's evidence at trial
was overwhelming. Gloria explained in detail how she was assaulted. Her
testimony was corroborated by the neighbors' testimonies, as well as the medical
records and the testimony of Dr. Greenfield. Defendant explains the alternate
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version of events that he would have offered, but this version is uncorroborated
by any other testimony or evidence. So, even if the trial court had erred in
allowing the State to use defendant's 2007 conviction, there is no demonstration
that defendant's decision not to testify had the clear capacity to change the
outcome of the trial.
2. The Admission of Dr. Greenfield's Testimony About the CAT Scan.
Defendant argues that the trial court erred in admitting "hearsay
testimony" from Dr. Greenfield "that a CAT scan of [Gloria] indicated that she
had a comminuted nasal bone fracture." In that regard, defendant asserts that
the admission of Dr. Greenfield's testimony constituted plain error because Dr.
Greenfield was not the doctor who actually administered the CAT scan, and he
was not qualified as an expert.
Treating physicians are permitted to testify about their "observations,
diagnosis and treatment" even when they are not testifying as expert witnesses.
Delvecchio v. Township of Bridgewater, 224 N.J. 559, 578 (2016) (quoting
Biunno, Weisberg & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E.
701 (2015)). In that regard, our Supreme Court has explained:
Our courts have long permitted treating physicians to
offer medical testimony regarding the diagnosis and
treatment of their patients, pursuant to N.J.R.E. 701.
That rule authorizes a court to admit the "testimony in
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the form of opinions or inferences" of a lay witness, if
the testimony "(a) is rationally based on the perception
of the witness and (b) will assist in understanding [the
witness's] testimony or in determining a fact in issue."
[Id. at 576 (quoting N.J.R.E. 701).]
Dr. Greenfield testified that he treated Gloria when she arrived at the
hospital on June 3, 2016. He then testified as to his evaluation of the tests he
ordered and the course of the treatment. He was not testifying as an expert;
rather, he was testifying as the treating physician. His testimony, including his
testimony concerning the CAT scan, was rationally based on his perceptions as
a treating physician and assisted the jury in understanding the injuries Gloria
suffered. Accordingly, Dr. Greenfield's testimony met the requirements of
N.J.R.E. 701, and the trial court did not abuse its discretion in allowing that
testimony.
Moreover, because there was no objection at trial to Dr. Greenfield's
testimony, defendant would have to show plain error to warrant a reversal of his
conviction. The record simply does not support a showing of plain error.
3. The Jury Pool.
Defendant argues in his pro se brief that the jury selection process did not
produce a random sample of his peers because certain zip codes were omitted ,
and the result was not a "statistically valid random result." This issue was not
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raised during the jury selection process, and, therefore, we evaluate it for plain
error.
Criminal defendants are guaranteed the "right to trial by a jury drawn from
a representative cross-section of the community." State v. Andujar, 247 N.J.
275, 299-300 (2021) (quoting State v. Gilmore, 103 N.J. 508, 524 (1986)).
"Jury-selection processes are presumed valid[,] and a defendant challenging a
jury-selection process 'must show by a preponderance of the believable evidence
that the attacked process is fatally flawed.'" State v. Dangcil, 248 N.J. 114, 141
(2021) (quoting State v. Long, 204 N.J. Super. 469, 485 (Law Div. 1985)). To
bring a challenge, a defendant must (1) "identify a constitutionally-cognizable
group," (2) "prove substantial underrepresentation over a significant period of
time," and (3) "show discriminatory purpose either by the strength of his [or her]
statistical showing or by showing the use of racially non-neutral selection
procedures to support the inference of discrimination raised by substantial
underrepresentation." Ibid. (quoting State v. Dixon, 125 N.J. 223, 232 (1991)).
Defendant has not shown that the jury selection process was flawed. In
that regard, defendant has not identified a group that was discriminated against,
nor has he shown any discriminatory intent. Instead, he argues that the selection
process was rushed, but he does not support that contention with any evidence.
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Accordingly, we discern no reversible error in the jury selection process that
would warrant vacating defendant's conviction.
IV.
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-prong Strickland test: (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 v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the Strickland two-prong test in New Jersey). Under prong
one, a defendant must establish that "counsel's representation fell below an
objective standard of reasonableness." Strickland, 466 U.S. at 688. Under prong
two, a defendant must demonstrate "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
1. The Failure to Retain a Medical Expert.
Defendant asserts that his trial counsel was ineffective in failing to retain
a medical expert to assess whether Gloria had serious bodily injuries. In support
of that contention, defendant certified in 2020 that he requested his trial counsel
to retain a medical expert to review Gloria's injuries, but trial counsel failed to
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do so. Defendant argues that a medical expert may have been able to opine that
Gloria's injuries "were not sufficiently severe or permanent to meet the statutory
definition of serious bodily injury associated with second-degree aggravated
assault," and that if such testimony had been offered, he may have been acquitted
or convicted of a lesser-included offense.
When a defendant claims that his counsel was ineffective in failing to
retain an expert to rebut the State's expert, the defendant must offer some
showing that an "independent expert[] would have reached materially different
conclusions." State v. Marshall, 148 N.J. 89, 211 (1997). Defendant speculates
on the testimony a defense expert may have been able to offer, but he has not
made any showing that a defense expert would have been able to opine that
Gloria's injuries were less serious than what Dr. Greenfield testified about at
trial. In short, defendant makes a bald contention without any factual support.
Accordingly, defendant has not shown that trial counsel's failure to retain a
medical expert constituted ineffective assistance of counsel.
2. The Failure to Object to the Testimony About the CAT Scan.
Defendant also argues that his trial counsel's failure to object to Dr.
Greenfield's testimony about the CAT scan constituted ineffective assistance of
counsel. We have already ruled that the trial court did not err in admitting Dr.
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Greenfield's testimony, and, therefore, defendant cannot prove either prong of
the Strickland test.
3. The Failure to Object to Remarks by the Prosecutor.
Defendant argues that the prosecutor "repeatedly brought up points [that]
were transparently calculated to elicit sympathy for [Gloria] and hostility to
[defendant]." In support of that argument, defendant points to various remarks
the prosecutor made in the opening statement and summation. He then contends
that his trial counsel's failure to object to those remarks constituted ineffective
assistance.
Prosecutors in criminal cases are expected to make "vigorous and
forceful" arguments to juries. State v. Frost, 158 N.J. 76, 82 (1999); see also
Garcia, 245 N.J. at 435. Nevertheless, a prosecutor's opening statement to the
jury "'should provide an outline or roadmap of the State's case' and 'should be
limited to a general recital of what the State expects, in good faith, to prove by
competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014)
(emphasis omitted) (quoting State v. Walden, 370 N.J. Super. 549, 558 (App.
Div. 2004)). Likewise, prosecutors are "obliged to confine summation remarks
to the evidence in the case and only those reasonable inferences that may be
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drawn from that evidence." State v. McNeil-Thomas, 238 N.J. 256, 283 (2019)
(LaVecchia, J., dissenting).
Defendant now objects to the prosecutor's comments concerning (1)
Gloria's decision to allow defendant and his mother to live at her home, and (2)
Gloria's fear of defendant during and after the assault. A review of the
prosecutor's comments in the totality of the circumstances of this case discloses
neither a prima facie showing of ineffective assistance of counsel nor reversible
error. The prosecutor's comments concerning Gloria allowing defendant and his
mother to live at her home were a fair summary of Gloria's subsequent
testimony. Therefore, those comments were permissible, and trial counsel was
not ineffective in failing to object to them.
The prosecutor's comments concerning what Gloria was thinking and
feeling during the assault may have been subject to objection, but they do not
constitute reversible error. Considered in the full context of defendant's trial,
those comments did not produce an unjust result. Accordingly, defendant has
failed to show that his counsel's failure to object was prejudicial.
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4. The Failure to Use All Peremptory Challenges.
Defendant also argues that his trial counsel was ineffective in not using
more peremptory challenges during the jury selection process. He contends that
several of the jurors may have been sympathetic to an assault victim.
A defendant can "strike individual jurors, without giving a reason, by
exercising peremptory challenges." Andujar, 247 N.J. at 284 (citing N.J.S.A.
2B:23-13(b)). "The 'goal of peremptory challenges is to secure an impartial
jury.'" Hitchman v. Nagy, 382 N.J. Super. 433, 444 (App. Div. 2006) (quoting
State v. DiFrisco, 137 N.J. 434, 468 (1994)). When the jury selection process
"adequate[ly] . . . ensure[d] that a fair and impartial jury was empaneled," there
is no showing of ineffective assistance of counsel constituting reversible error.
State v. Timmendequas, 161 N.J. 515, 598-601 (1999) (rejecting defendant's
ineffective assistance of counsel argument when jurors were thoroughly
questioned and defense counsel did not use any peremptory challenges).
In this matter, a review of the record establishes that the trial court
adequately questioned the jurors concerning their ability to be fair and impartial.
All the jurors impaneled testified that they would be able to view the case
impartially, and there is nothing in the record to indicate that any juror was not
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impartial. Thus, there has been no showing of ineffective assistance of counsel
for failing to use more peremptory challenges.
V.
In his pro se brief, defendant contends that the then-Atlantic County
Prosecutor Damon Tyner should have been disqualified due to a conflict of
interest because Tyner had previously been a judge and had handled defendant's
arraignment.
RPC 1.12(a) states, in relevant part, that "a lawyer shall not represent
anyone in connection with a matter in which the lawyer participated personally
and substantially as a judge . . . unless all parties to the proceedings have given
consent, confirmed in writing." RPC 1.12(b) provides that if a lawyer is
disqualified by RPC 1.12(a), then "no lawyer in a firm with which that lawyer
is associated may knowingly undertake or continue representation in the matter"
unless the lawyer is timely screened, or written notice is promptly given to the
parties. In State v. Smith, 478 N.J. Super. 52 (App. Div. 2024), we held that an
entire county prosecutor's office need not be disqualified so long as the
prosecutor who has a conflict due to a prior representation is appropriately
screened from the matter and has not shared any confidential information
learned during his or her prior involvement in the case. Id. at 64. We expressly
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noted that our holding applied to prior involvement by both assistant county
prosecutors and the county prosecutor. Ibid.
In this matter, we discern no grounds for reversing defendant's conviction
based on the prosecutor's prior service as a judge. The record discloses that
while a judge, Tyner had limited involvement in defendant's case because he
only presided over the arraignment. Moreover, there is no showing that Tyner
had any involvement in the prosecution of defendant's case once he became
county prosecutor.
VI.
Defendant also argues that "the cumulative errors committed" warrant
reversal of his conviction. As we have found no error, there are no cumulative
errors warranting reversal of defendant's conviction. See State v. Weaver, 219
N.J. 131, 155 (2014) (explaining that if "no error was prejudicial and the trial
was fair," the theory of cumulative error does not apply).
Finally, to the extent that we have not addressed any other argument made
by defendant, it is because we have concluded that those arguments lack
sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).
Affirmed. This court's prior order granting bail is vacated.
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