State of New Jersey v. Larry Dukes ( 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NOT FOR PUBLICATION WITHOUT THE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-2227-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v,
LARRY DUKES, a/k/a
LAKEEM DUKES,
LAWRENCE DUKES, LARRY
DUKE, TERRY T. FOWLER,
and TERRY FOWLER,
Defendant-Appellant.
___________________________
Submitted January 9, 2024 – Decided January 19, 2024
Before Judges Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-06-
0718.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank J. Pugliese, Designated Counsel, on
the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy Anne Hulett, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals the order denying his petition for post-conviction
relief. After a trial, defendant was convicted on robbery, aggravated assault,
and drug possession charges and was sentenced to an aggregate term of thirty-
four years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed on direct appeal, and defendant filed his petition, which the trial
court denied without an evidentiary hearing. Defendant contends the PCR court
erred by rejecting his claims that he was denied ineffective assistance of counsel.
He contends, among other things, trial counsel failed to: investigate alibi
witnesses; file certain motions; and obtain a plea offer from the State. For the
reasons that follow, we affirm.
I.
We glean the facts and relevant procedural history in part from our opinion
affirming defendant's conviction and sentence, State v. Dukes, No. A-4668-17
(App. Div. Mar. 26, 2021) (slip op. at 4).
During the early morning hours of April 10,
2017, [the three victims] Rodriguez, Ramos-Sanchez,
and Paz left a nightclub and headed towards a
restaurant. A nearby surveillance camera captured
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them on film as they passed by shortly before the
robbery. At trial, Rodriguez identified the man, seen
wearing a hat, walking behind the group almost
immediately after they went out of camera range, as the
person who punched him in the head from behind,
knocking him to the ground. Paz screamed for help,
somehow fell, broke her ankle, and rolled beneath a
parked car. Rodriguez attempted to get up to help her,
but [he] was struck again by the man with a hat, this
time with an object. That blow left a laceration on
Rodriguez's forehead requiring twelve stitches that left
a visible scar shown to the jury. The man with the hat
demanded Rodriguez's money and searched his
pockets.
....
Paz's recollection was that as the group was
walking, someone demanded their money. She thought
the assailants were in front of the group but could not
be certain.
Ramos-Sanchez said she saw two men approach
from the rear and heard them demand money; she was
sprayed in the face with an irritant. She immediately
ran to an intersecting street, and the men chasing her
turned away. Ramos-Sanchez encountered pedestrians
leaving a bar, who called the police on her behalf. Her
eye remained cloudy after the incident, although she
refused medical attention at the time.
None of the victims, who had been drinking,
could identify their attackers. Rodriguez remembered
only that the man who struck him in the forehead wore
dark clothes and a cap. He initially thought he was hit
with a gun, but over time became uncertain as to the
nature of the object. Rodriguez and Ramos-Sanchez
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were sure there were only two assailants; Paz thought
there may have been three or four.
New Brunswick Police Sergeant Theirry
Lemmerling obtained the surveillance videos, shown to
the jury, from two neighborhood stores. He
downloaded them onto a flash drive, then transferring
them to a disc. During trial, all three victims identified
themselves on the video. The person walking closest to
the group as it leaves camera range was wearing a hat.
Lemmerling made still photographs from the video
footage of the two men walking behind the victims,
including the man with a hat. A few days later, two
New Brunswick police officers drove by defendant
standing at a corner. They had been shown the still
photograph that morning and knew there was an
outstanding warrant for his arrest related to the robbery.
The officers stopped, and when one of them told
defendant he had an arrest warrant, defendant fled. A
third officer saw defendant running, saw him discard
ten glassine envelopes containing heroin and fiorinal
fentanyl, and caught him. When arrested, defendant
was carrying a can of pepper spray.
At the station, New Brunswick Police
Department Detective Brandt Gregus questioned
defendant and showed him the still photo. Defendant
admitted he was the man wearing a hat walking a few
paces behind the three victims[,] moments before the
robbery. That picture was admitted into evidence and
shown to the jury when Gregus testified.
Defendant was indicted by a grand jury, and charged, along with a co-
defendant, Ricky Greene, with: three counts of first-degree robbery, N.J.S.A.
2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a) and
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2C:15-1; and two counts of second-degree aggravated assault, N.J.S.A. 2C:12-
1b(1). Defendant alone was also charged with third-degree possession of heroin,
N.J.S.A. 2C:35-10a(1), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2).
The State made a joint plea offer to defendants. The proposed agreement
was conditioned upon each defendant pleading guilty. One defendant would
plead guilty to second-degree aggravated assault, with a recommended eight-
year sentence subject to NERA, while the other defendant would plead to
second-degree conspiracy to commit robbery, for which the State would
recommend a sentence in the third-degree range. Co-defendant Greene rejected
the dual plea offer and elected to proceed to trial.
Defendant continued his plea negotiations, and eventually at a pretrial
conference he advised the court through trial counsel that he did not want to go
to trial and was willing to plead to second-degree aggravated assault in exchange
for a five-year sentence. However, the State indicated that it would agree to
those terms only if defendant agreed to inculpate Greene. Plea negotiations with
defendant ceased, as the State conditioned defendant's plea on getting a plea
from Greene. The following colloquy between the trial court and defendant took
place at a pretrial conference:
THE COURT: Mr. Dukes, you know what the deal is
here. I can't force the prosecutor to give you a deal that
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he doesn't want to give you. You want – he wants to
give you five years. . . . Mr. Dukes you were present in
court when I spoke to Mr. Greene, you understand
what's at risk here, right? You have priors?
DEFENDANT: Yes.
THE COURT: All right. So you understand what's at
risk here. If you're convicted, conceivably you can go
to prison for the rest of your life, right? The
prosecutor's offering you five years, but he wants you
to inculpate Mr. Greene who's seated right next to you.
Because the prosecutor thinks that he was involved to
the same extent that you were involved in this robbery.
I understand your position is . . . I want the deal, I want
to tell the truth, but the truth is, Mr. Greene wasn't
involved to the same extent that I was involved in,
right?
DEFENDANT: Exactly.
THE COURT: Right. But I can't give you that deal
because the deals don't come from me, the deal comes
from the prosecutor. You understand that? So right
now – and you know what the proofs are in this case,
because the prosecutor just laid it out on the record
when we spoke about Mr. Greene. So all we can do
here is schedule this matter for trial. You have two
choices. We can go to trial, you know what the risks
are. Or you can take the deal, but the deal that the
prosecutor is demanding is that you give up Mr. – you
give up Mr. Greene, you understand that? All right. So
what we're [going to] do is, we're scheduling this for
trial.
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After defendant's trial, a jury convicted him of two counts of first-degree
robbery, second-degree conspiracy to commit robbery, two counts of second-
degree aggravated assault, third-degree heroin possession, and resisting arrest.
The court sentenced defendant to an aggregate thirty-four-year term of
incarceration. We affirmed defendant's conviction and sentence on direct
appeal. Dukes, slip op. at 6-10.
Defendant petitioned for post-conviction relief, alleging: his ability to
accept a lesser plea was hindered by personal conflict between his trial counsel
and the assistant prosecutor representing the State; his attorney failed to
investigate potential alibi witnesses; and other errors by his trial attorney
amounted to cumulative error contrary to his right to effective assistance of
counsel. Defendant also argued that "inconsistent and questionable" witness
testimony compromised his right to a fair trial.
The PCR court denied the petition without an evidentiary hearing, making
oral findings. The court rejected defendant's ineffective assistance of counsel
claim, finding the record did not support the theory that a personal dispute
between counsel and the prosecutor caused negotiations to fail. The court also
found defendant presented no facts to support a potential alibi, and that if he
had, any testimony regarding an alibi would have been undermined by
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defendant's admission he was at the scene. The court also found that other errors
alleged by defendant, such as failing to file certain pre-trial motions, did not
constitute a prima facie cause of ineffective assistance of counsel, and concluded
there was no cumulative error. Finally, the court determined that certain of
defendant's arguments were inapposite for PCR because they should have been
raised on direct appeal.
Defendant raises the following points in his appeal:
POINT I:
THE PCR COURT ERRED IN FINDING THAT
DEFENDANT WAS NOT DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.
ALTERNATIVELY, DEFENDANT ESTABLISHED
A PRIMA FACIE CLAIM OF INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL WHICH WAS
SUPPORTED BY MATERIAL ISSUES OF
DISPUTED FACTS LYING OUTSIDE THE
RECORD. THE RESOLUTION OF THE DISPUTED
FACTS NECESSITATED AN EVIDENTIARY
HEARING. THE PCR COURT ERRED IN FAILING
TO CONDUCT SUCH A HEARING.
POINT II:
FOR THE REASONS EXPRESSED IN POINT I,
SUPRA, THE PCR COURT ERRED WHEN IT
RULED THAT DEFENDANT FAILED TO
ESTABLISH A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THIS ERROR LED IT TO ERRONEOUSLY REJECT
DEFENDANT'S CLAIM OF CUMULATIVE ERROR.
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POINT III:
DEFENDANT WAS CONVICTED BY
INCONSISTENT AND QUESTIONABLE
WITNESSES' TESTIMONIES. BASIC FAIR PLAY
AND FUNDAMENTAL FAIRNESS REQUIRED
THAT HE BE GRANTED A NEW TRIAL BY THE
PCR COURT.
II.
We use a de novo standard of review when a PCR court denies relief
without an evidentiary hearing. State v. Aburoumi, 464 N.J. Super. 326, 338
(App. Div. 2020); see also State v. Nash, 212 N.J. 518, 540-41 (2013). Our rules
require a court to conduct an evidentiary hearing on a PCR petition, "only upon
the establishment of a prima facie case in support of post-conviction relief." R.
3:22-10(b). "A prima facie case is established when a defendant demonstrates
'a reasonable likelihood that his or her claim, viewing the facts alleged in the
light most favorable to the defendant, will ultimately succeed on the merits.'"
State v. Porter, 216 N.J. 343, 355 (2013) (quoting R. 3:22-10(b)).
To establish a prima facie claim of ineffective assistance of counsel,
defendant must show: (1) counsel's performance was deficient; and (2) the
deficiency prejudiced the defense. Strickland, 466 U.S. at 687; State v. Fritz,
105 N.J. 42, 52 (1987) (adopting Strickland). A successful showing requires
defendant to establish "by a preponderance of the credible evidence" entitlement
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to the requested relief. Nash, 212 N.J. at 541 (quoting State v. Preciose, 129
N.J. 451, 459 (1992)).
To satisfy the first Strickland prong, "a defendant must overcome a 'strong
presumption' that counsel exercised 'reasonable professional judgment' and
'sound trial strategy' in fulfilling [their] responsibilities." State v. Hess, 207 N.J.
123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). "[I]f counsel makes
a thorough investigation of the law and facts and considers all likely options,
counsel's trial strategy is 'virtually unchallengeable.'" State v. Chew, 179 N.J.
186, 217 (2004) (quoting Strickland, 466 U.S. at 690-91).
Because prejudice under Strickland's second prong is not presumed, Fritz,
105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel
undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S.
648, 659 n.26 (1984). To establish prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” State v.
Gideon, 244 N.J. 538, 550-51 (2021) (alteration in original) (quoting Strickland,
466 U.S. at 694).
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III.
A.
Defendant argues he did not receive effective assistance of counsel during
plea negotiations. Specifically, he contends that he wanted to accept a plea
offer, but the offer was rescinded because of interpersonal conflict between trial
counsel and the assistant prosecutor. He alleges trial counsel informed him of
this ongoing conflict. Plaintiff posits this issue at least represents a factual
question which justifies an evidentiary hearing. We disagree.
"A defendant asserting plea counsel's assistance was ineffective may meet
the first prong of the Strickland standard if the defendant can show counsel's
representation fell short of the prevailing standards expected of criminal defense
attorneys." State v. Vanness, 474 N.J. Super. 609, 624 (App. Div. 2023) (citing
Padilla v. Kentucky, 559 U.S. 356, 366-67 (2010)). "Plea counsel's performance
will not be deemed deficient if counsel has provided the defendant 'correct
information concerning all of the relevant material consequences that flow from
such a plea.'" Id. at 624 (quoting State v. Agathis, 424 N.J. Super. 16, 22 (App.
Div. 2012)); see also Nuñez-Valdez, 200 N.J. 129, 138-39 (2009).
Defendant fails to establish a prima facie claim for ineffective assistance
of counsel during his plea negotiations. His claim that his plea was rescinded
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due to personal issues between the lawyers is not borne out in the record. Even
accepting defendant's claims about conflict as true, the record shows defendant's
predicament was entirely attributable to either Greene's refusal to plead or his
refusal to testify against Greene.
The colloquy at his plea hearing shows defendant clearly understood the
requirements of the proposed plea agreement and the potential ramifications of
going to trial. His decision to proceed to trial was knowing and voluntary. The
record further shows trial counsel worked diligently to obtain a non-contingent
plea offer from the State, even requesting a meeting with the assistant
prosecutor's supervisor. Defendant failed to present proof that trial counsel
provided him with inaccurate or incomplete information during plea
negotiations. On this question, defendant has failed to show ineffective
assistance of counsel.
B.
Defendant argues his trial counsel failed to fully investigate his case. He
alleges that he asked his attorney to speak with two alibi witnesses, but counsel
never did. He contends this was ineffective assistance of counsel. We are not
persuaded.
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"Failure to investigate an alibi defense is a serious deficiency that can
result in the reversal of a conviction." Porter, 216 N.J. at 353. "Indeed, 'few
defenses have greater potential for creating reasonable doubt as to a defendant's
guilt in the minds of the jury [than an alibi].'" Ibid. (quoting State v. Mitchell,
149 N.J. Super. 259, 262 (App. Div. 1977)). A PCR petitioner asserting that his
trial attorney inadequately investigated a potential witness "must assert the facts
that an investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant or the person
making the certification." Ibid. (quoting State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999)).
Defendant's claim has no merit, as he fails to assert any specific facts
which an investigation of his alibi witnesses would have revealed. Even if
counsel erred in failing to contact these witnesses, any potential testimony they
might have offered regarding an alibi would be critically undermined by
defendant's own admission placing himself at the scene, so he cannot show
prejudice under the second prong of Strickland.
In a related argument, defendant suggests the PCR court erred by rejecting
his claim that his admission placing himself at the scene of the crime was not
probative of his guilt. Defendant's attempt to persuade the PCR court, and now
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us, that this fact is not dispositive on a Strickland prong two analysis has no
merit. His argument that being present at the scene of the crime does not
conclusively establish guilt misses the point. While true, it is not relevant in a
Strickland analysis, as an alibi witness could not credibly support a theory that
defendant was present at the scene, but was somehow not the assailant.
Defendant failed to present proof of ineffective assistance of counsel on this
question and, if he had, he could not have overcome his own admission in order
to show prejudice.
C.
Defendant argues his trial counsel was ineffective for failing to file
motions for suppression, dismissal of the indictment, and for a Wade1 hearing.
We disagree.
A motion to suppress evidence seized at the scene of the arrest would have
failed as the heroin, which he was observed discarding while fleeing the police,
was lawfully seized as abandoned property. See State v. Johnson, 193 N.J. 528,
548-549 (2008). Similarly, a Wade hearing to challenge his out-of-court
identification by witnesses would have been futile, as witnesses were never able
1
United States v. Wade, 388 U.S. 218 (1967).
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to identify defendant. Defendant placed himself at the scene. See Pressler &
Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:11 (2024).
Finally, a motion to dismiss the indictment would not have succeeded as
defendant has not alleged any defect in the indictment. See State v. Bell, 241
N.J. 552, 560 (2020) ("[A] court should dismiss [an] indictment 'only on the
clearest and plainest ground, and only when the indictment is manifestly
deficient or palpably defective.'" (quoting State v. Twiggs, 233 N.J. 513, 531-
32 (2018))).
Again, defendant has not established a prima facie case for ineffective
assistance of counsel under Strickland.
D.
Defendant argues a new trial is warranted based on the doctrine of
fundamental fairness pursuant to Rule 3:20-1, because he was convicted based
on inconsistent evidence. Defendant specifically submits that none of the
victims were able to identify him as an assailant. A petition for PCR is not the
proper vehicle for these arguments.
Grounds for a motion for post-conviction relief are limited and include:
(1) deprivations of defendant's constitutional rights; (2) lack of jurisdiction by
the trial court; (3) illegal sentences; (4) collateral attack by habeus corpus or
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other common-law or statutory remedy; and (5) ineffective assistance of
counsel. R. 3:22-2. Issues that could have been raised in prior proceedings are
generally barred from being brought in a PCR. R. 3:22-4(a).
Defendant's fundamental fairness claims are not cognizable on this record.
To the extent defendant argues for a new trial in the interest of justice pursuant
to Rule 3:20-2, defendant's argument claim is time barred, as he did not raise it
within 10 days of the jury's verdict or offer newly-discovered evidence. To the
extent defendant argues sufficiency of the evidence, it was argued in his direct
appeal, and cannot be raised again in a motion for post-conviction relief pursuant
to Rule 3:22. The PCR court properly rejected these claims.
To the extent we have not addressed defendant's remaining arguments, we
conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed.
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