State of New Jersey v. Jesus Dejesus ( 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NOT FOR PUBLICATION WITHOUT THE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-2429-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JESUS DEJESUS, a/k/a
JESUS T. FLORES,
JESUS DE JESUS,
JESUS FLORES,
JESUS TORRES-FLORES,
JESUS TORRES, and
JAMES DEJESUS,
Defendant-Appellant.
__________________________
Submitted January 10, 2024 – Decided January 31, 2024
Before Judges Vernoia and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 12-09-0693.
Joseph E. Krakora, Public Defender, attorney for
appellant (Amira Rahman Scurato, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant Jesus DeJesus appeals from an order dismissing his post-
conviction relief (PCR) petition following an evidentiary hearing on claims his
trial and appellate counsel provided ineffective assistance and the trial court
committed errors resulting in a violation of his constitutional rights.
Unpersuaded by defendant's arguments, we affirm.
I.
A grand jury returned an indictment charging defendant with first-degree
armed robbery, N.J.S.A. 2C:15-1(a)(1) and (2); second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of
a weapon by a convicted person, N.J.S.A. 2C:39-7(b). A jury convicted
defendant on all the charges and the court imposed an aggregate twenty-year
sentence subject to the requirements of the No Early Release Act, N.J.S.A.
2C:43-7.2. We affirmed defendant's conviction and sentence on his direct
appeal, State v. DeJesus, No. A-4464-15 (App. Div. May 24, 2018) (slip op. at
A-2429-21
2
11), and the Supreme Court denied defendant's petition for certification, State
v. DeJesus, 236 N.J. 115 (2018).
The evidence presented at defendant's trial established that on June 19,
2012, the victim was seated on a bench on a Paterson street when an individual
approached her from behind, held a gun to her face, and threatened to kill her if
she did not hand over her purse. When the victim refused, the individual pulled
her to the ground and attempted to wrestle the purse from her while dragging
her approximately one hundred feet down the sidewalk. The individual pulled
the bag off the victim's shoulder and began running. The victim testified she
began feeling severe pain the night of the incident and continued to feel chronic
pain at the time of trial.
Two witnesses saw the altercation and chased the individual. They
followed him as he ran down the street and through a Passaic County College
building, eventually catching the individual as he attempted to scale a wall. The
witnesses pulled him from the wall and held him until police arrived. He was
later identified as defendant.
Police officers arrested defendant and retrieved the purse from where the
witnesses held defendant. The victim testified at trial that when she had been
asked during her police interview to make an identification, she had said, "I
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didn't see him until the police came back and asked me if [the bag they had
retrieved] was my purse and there was a man inside [the police car] and [t]he
[officer said] was this the guy? I told him I think so" because "he has my purse,
so it must have been him."
The witnesses positively identified defendant as the perpetrator when the
police arrived at the scene. A police officer returned to Passaic County College
and retrieved a gun from a campus security officer who had placed it under a
traffic cone after responding to a report an "item" was dropped and observing it
on the floor outside the college's cafeteria. It was later determined to be a pellet
gun.
At the police station following defendant's arrest, Detective Robert
Pleasant conducted separate recorded interviews with the victim and each of the
witnesses. During their interviews, the witnesses identified defendant as the
perpetrator in a single photograph shown to them by Detective Pleasant. The
detective did not prepare a report following the interviews and, although the
State had made contact with him prior to trial, Detective Pleasant reportedly had
retired to Florida and refused to testify at trial.
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During the pretrial Wade1 hearing on defendant's motion to suppress the
witnesses' out-of-court photo identifications of him, his counsel noted that
recordings of the empty interview room during the minutes prior to one of the
witness's entry into the room for his recorded interview included audio of what
appeared to be a discussion by unidentified individuals.2 Trial counsel asserted
that although the recording picked up, in part, statements made prior to the
witness's entry into the room for his interview, the transcript of the recording
did not include those statements and that failure should be a fact considered by
the court in its determination of defendant's motion to suppress the out-of-court
identifications made during the recorded interviews of the witnesses.
The court granted defendant's Wade motion. The court analyzed the
admissibility of the witnesses' recorded out-of-court identifications of defendant
during their interviews with Detective Pleasant under the principles established
by the Supreme Court in State v. Henderson, 208 N.J. 208 (2011), and entered
1
United States v. Wade, 388 U.S. 218 (1967).
2
A third witness also made a pretrial out-of-court identification of defendant
based on a presentation of a photograph of defendant by Detective Pleasant. It
was unnecessary for the motion court to address the admissibility of that
witness's out-of-court identification because he was unavailable to testify at
trial. The parties also had agreed that the victim's identification of defendant
was not at an issue at the Wade hearing, and, as a result, the motion court did
not make any findings concerning the victim's identification of defendant.
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an order suppressing the witnesses' identifications of defendant during those
recorded interviews.
Following our affirmance of defendant's convictions and sentence on his
direct appeal, and the Supreme Court's denial of his petition for certification,
defendant timely filed a pro se PCR petition. Defendant generally alleged trial
counsel was ineffective by failing to: adequately confront the witnesses
presented by the State at trial; call favorable witnesses; object to the admissi on
in evidence of the victim's purse; call "a key witness," Detective Pleasant, and
question him "about material facts in his incident report"; and obtain an audio
expert to determine what, if anything, could be heard on the recording prior to
one of the witness's entry into the interview room for his interview with
Detective Pleasant.
In a supplementary verified petition, defendant reprised the claims in his
initial petition and further asserted trial and appellate counsel were ineffective
by failing to: "review and attack substantial exculpatory evidence"; provide
defendant with complete discovery materials; challenge the admissibility of
evidence concerning the victim's alleged injuries; call certain witnesses
defendant claimed would have provided exculpatory testimony; and seek
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vacatur of his sentence and a reversal of his conviction. After reviewing
defendant's petitions, the court ordered an evidentiary hearing.
Defendant testified at the hearing and called trial counsel as a witness.
Defendant testified trial counsel was ineffective by failing to provide him with
complete discovery and that, following his trial, he had obtained from the
Paterson Police Department—through service of an Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, request—documents he had not been provided
prior to trial. Defendant did not describe the information contained in the newly
obtained documents or offer any testimony, evidence, or arguments establishing
a reasonable probability that had he been provided the documents prior to trial,
the result of the trial would have been different.
Defendant also testified counsel was ineffective by failing to object at trial
to the victim's testimony concerning injuries she had suffered during the robbery
and by failing to obtain records related to her injuries. Again, defendant neither
provided testimony, nor presented any other evidence, explaining the content of
the purported records or establishing that had he been provided the records prior
to the trial, there is a reasonable probability they would have altered the outcome
of the trial.
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Defendant further testified that following trial, he had obtained a dispatch
record from the Paterson Police Department that did not show a particular
officer—whom defendant did not identify—had arrived at the scene of the
robbery. Defendant testified the dispatch record therefore contradicted a State
claim at trial that the officer was at the robbery scene. Defendant did not identify
the officer, explain the significance of the officer's presence at the scene, or
otherwise establish that had trial counsel obtained and provided him with the
dispatch record prior to trial, the result of the proceeding would have been
different.
Defendant next testified trial counsel was ineffective by failing to obtain
an audio expert to extract otherwise indecipherable statements from the portion
of the recording of the empty interview room prior to the entry of one of the
witnesses into the room for his interview. However, other than defendant's
testimony that extraction of the otherwise indecipherable voices on the
recording might have yielded exculpatory evidence, defendant offered no
competent evidence the extraction was possible or would have been successful,
or that if it had been successful, there is a reasonable probability it would have
yielded evidence that would have changed the trial outcome.
A-2429-21
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During his testimony, defendant asserted trial counsel was ineffective by
losing the Wade motion, but the record shows defendant won the Wade motion
and the court had entered an order suppressing the challenged out-of-court
identifications—those which were provided by the witnesses during their
recorded interviews with Detective Pleasant. Defendant further generally
testified trial counsel was ineffective by failing to: move to dismiss the
indictment; challenge the witnesses' in-court identifications of him; and move
to suppress the victim's purse and photos of the gun. Other than defendant's
conclusory assertions trial counsel was ineffective based on those purported
errors, defendant neither offered testimony nor any other evidence establishing
trial counsel's alleged errors constituted a constitutionally deficient performance
or demonstrating a reasonable probability that but for the alleged errors, the
result of the trial would have been different.
Following the evidentiary hearing, the court issued a written decision,
detailing defendant's testimony supporting his ineffective assistance of counsel
claims and concluding defendant had failed to sustain his burden of establishing
his claims under the two-pronged standard established by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted
by our Supreme Court for application under the New Jersey Constitution in State
A-2429-21
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v. Fritz, 105 N.J. 42 (1987). The motion court entered an order denying
defendant's PCR petition, and this appeal followed.
Defendant's counsel's brief presents the following arguments for our
consideration:
POINT I
BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE
PCR COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR PCR.
A. LEGAL STANDARDS GOVERNING
APPLICATIONS FOR [PCR].
B. TRIAL COUNSEL WAS INEFFECTIVE.
C. APPELLATE COUNSEL WAS INEFFECTIVE.
Defendant's pro se supplemental letter brief presents the following
arguments 3:
3
Defendant's pro se reply brief includes additional arguments not properly
incorporated in point headings as required by Rule 2:6-2(a)(6), including claims
concerning third-party guilt, chain-of-custody, fruit of the poisonous tree,
prosecutorial misconduct, suggestive identification, and a lack of evidence
supporting his convictions. Although we are not obligated to consider legal
arguments that are not properly presented in accordance with Rule 2:6-2(a),
Almog v. Isr. Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div.
1997), or that are improperly asserted for the first time on appeal in a reply brief ,
Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 38 (App. Div. 2015), we
nonetheless have considered all the arguments asserted in defendant's pro se
briefs, as well as those in his counsel's brief.
A-2429-21
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POINT I
JURY'S VERDICT AND [DEFENDANT'S]
CONVICTION W[ERE] AGAINST THE WEIGHT OF
THE EVIDENCE IN VIOLATION OF THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ALSO TO ARTICLE
I PARA[S] 9, 10 OF THE NEW JERSEY
CONSTITUTION AND [ARE] THE [RESULT] OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
JUDGE FAILED [THEIR] DUTY AS [AN]
IMPARTIAL TRIBUNAL VIOLATING
DEFENDANT'S RIGHT TO DUE PROCESS AND A
FAIR TRIAL BY GIVING ERRONEOUS JURY
INSTRUCTIONS INCLUDING MISINSTRUCTION
ON ELEMENTS OF [THE] OFFENSE AND TRIAL
COUNSEL FAILED TO OBJECT TO THE ABSENCE
OF PROPER JURY INSTRUCTIONS.
POINT III
JUDGE'S ERROR WAS CONTRARY TO APPRENDI
V. NEW JERSEY, [530 U.S. 466 (2000)]. IN HIS
IMPLEMENTING [OF] [DEFENDANT]'S JURY
CHARGE, JURY INSTRUCTION ON FLIGHT
WITHOUT THERE BEING ANY FORM OF
INDICTMENT ON SUCH CHARGE WITH NO
ADMISSION FROM [DEFENDANT] HIMSELF ON
SAID CHARGE, TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO OBJECT TO SAID
ERRONEOUS JURY INSTRUCTION.
A-2429-21
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POINT IV
DEFENSE COUNSEL FAILED DUTY AS
UNTRAMMELED LITIGANT ON DEFENDANT'S
BEHALF VIOLATING DEFENDANT'S RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT TO
THE U.S. CONSTITUTION.
In defendant's pro se reply brief, he presents the following arguments:
POINT I
[DEFENDANT] SUBMITS THAT THE CHARGE TO
HIS JURY WAS ILLEGAL AND FLAWED IN
ADDRESSING THE POSSESSION CHARGE []
SUFFICIENT TO SUSTAIN A CONVICTION ON
ALLEGED "POSSESSION OF A GUN" THUS HIS
CONVICTION AND SENTENCE MUST BE
REVERSED WITH PREJUDICE. THE ERRONEOUS
JURY CHARGE DEPRIVED [DEFENDANT] AND
HIS JURY OF A "PROXIMITY CHARGE" AS THE
N.J. SUPREME CT. [H]AD DEALT WITH IN STATE
V. PENA, [178 N.J. 297 (2004)].
POINT II
NEW JERSEY STATE COURTS MUST BECOME IN
COMPLIANCE WITH 5[TH] AMEND.
COLLATERAL CONSEQUENCES RULE[—]IN
ORDER TO PROTECT [DEFENDANT]'S STATE
AND FEDERAL CONSTITUTIONAL RIGHTS TO A
FUNDAMENTALLY FAIR JURY TRIAL AND TO
BE LEGALLY ABLE TO ARTICULATE
SUCCESSFUL MERITORIOUS ARGUMENT[S]
SURROUNDING INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIMS.
A-2429-21
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POINT III
[DEFENDANT] SUBMITS THAT THE PROFFER
HEREIN VALIDATES HIS GROSS INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS FROM
TRIAL COUNSEL, APPEAL COUNSEL AND PCR
COUNSEL CONTRARY TO HIS 6[TH] AND 5[TH]
AMEND. U.S. CONST. RIGHTS, AS
ARTICULATED AS WELL IN N.J. CONST. ART. I,
PARA[S]. 1, 8, 9 & 10 – WHERE [DEFENDANT]
WAS ILLEGALLY DEPRIVED RECORDINGS OF
THE CONVERSATIONS OUTSIDE THE
INTERROGATION ROOM AS PART OF THE
RECORDED RECORD ON THE [FOUR] DVD[]S
THAT [WERE] PROVIDED WHERE COMMENTS
OVERHEARD WERE VERY REVEALING OF
OFFICERS ATTEMPTING TO ELICIT
PREJUDICIAL COMMENTS FROM WITNESSES
AND COERCING WITNESSES IN WHAT TO SAY,
THIS WAS A VIOLATION OF [DEFENDANT]'S
FUNDAMENTAL LIBERTY INTEREST TO
PREPARE FOR A FAIR JURY TRIAL WITH
UNHAMPERED INTERFERENCE SUFFICING A
DEFENSE AGAINST RESPONDENT'S
ALLEGATIONS CONTRARY TO THE U.S. CONST.
14[TH] AMEND.
A. [DEFENDANT] SUBMITS THAT CONTENT OF
INTERNAL THE INTERNAL CONVERSATIONS &
EXTERNAL CONVERSATIONS REPRESENT
EFFICIENT, ACCURATE & RELIABLE DATA ON
THE [FOUR] DVD[]S, AND DENIAL WAS A
DEPRIVATION TO HIS DEFENSE—CONTRARY
TO HIM BEING LEGALLY AND
CONSTITUTIONALLY ENTITLED TO HAVE
TRANSCRIPTION OF BOTH INTERNAL
CONVERSATIONS [AND] EXTERNAL
CONVERSATIONS PURSUANT TO HIS 5[TH]
A-2429-21
13
AMEND. [AND] 14[TH] AMEND. U.S. CONST. AND
N.J. CONST. ART. I, PARA[S]. 1, 8, 9 & 10.
B. THE PUBLIC DEFENDER'S OFFICE (CENTRAL
OFFICE/ APPELLATE SECTION) RENDERED
GROSS INEFFECTIVE ASSISTANCE OF COUNSEL
IN ALLOWING [DEFENDANT]'S COUNSEL [] TO
START A JURY TRIAL WITH SIGNIFICANT
INADEQUACIES IN THE TRIAL TRANSCRIPTS
[AND] RECORDS CONTRARY TO
[DEFENDANT]'S 14[TH] AMEND. U.S. CONST.
RIGHTS VIOLATING DUE PROCESS CLAUSE,
EQUAL PROTECTION CLAUSE AND
FUNDAMENTAL PROTECTIONS OF THE N.J,
CONST. ART. I, PARA[S]. 1, 8, 9 & 10.
POINT IV
THE PROSECUTOR[]S IN THE CASE AT BAR
CREATED AN ATMOSPHERE OF MISCONDUCT
IN VIOLATION OF [DEFENDANT]'S U.S. CONST.
14[TH] AMEND. RIGHTS TO A FUNDAMENTAL
FAIR JURY TRIAL, GRAVELY CONTRARY TO
THE SEMINAL HOLDING IN MOONEY V.
HOLOHAN, [294 U.S. 103 (1935)].
A. THE PROSECUTOR'S OFFICE COMMITTED
GRAVE PROSECUTORIAL MISCONDUCT IN
KNOWINGLY, INTELLIGENTLY [AND] WITH
DELIBERATE ILL-INTENTION, ALLOW[ING]
[DEFENDANT]'S TRIAL TO PROCEED WITH
SIGNIFICANT INADEQUACIES IN THE TRIAL
EVIDENCE, TRANSCRIPTS/RECORDS [AND]
SAME WAS NEVER CORRECTED PRIOR TO THE
START OF TRIAL.
A-2429-21
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II.
We review a PCR court's conclusions of law de novo. State v. Nash, 212
N.J. 518, 540-41 (2013). Where, as here, the court has conducted an evidentiary
hearing on a PCR petition, we defer to the "court's factual findings based on its
review of live witness testimony," id. at 540, because of its "'opportunity to hear
and see the witnesses and to have the feel of the case, which a reviewing court
cannot enjoy,'" State v. Nuñez-Valdéz, 200 N.J. 129, 141 (2009) (citations
omitted). We must affirm the PCR court's factual findings unless they are not
supported by "sufficient credible evidence in the record" and "'are so clearly
mistaken "that the interests of justice demand intervention and correction."'"
Ibid. (citations omitted).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee a defendant in a criminal
proceeding the right to the assistance of counsel in their defense. The right to
counsel requires "the right to the effective assistance of counsel." Nash, 212
N.J. at 541 (quoting Strickland, 466 U.S. at 686).
To establish a prima facie case of ineffective assistance of counsel, a
defendant must show a "reasonable likelihood" of success under the two-prong
test outlined in Strickland. State v. Preciose, 129 N.J. 451, 463 (1992); see also
A-2429-21
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Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 58. The Strickland test requires
that defendant show (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" and (2)
counsel's "deficient performance prejudiced the defense." Fritz, 105 N.J. at 52(quoting Strickland, 466 U.S. at 687). "With respect to both prongs of the
Strickland test, a defendant asserting ineffective assistance of counsel on PCR
bears the burden of proving his or her right to relief by a preponderance of the
evidence." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted). If a
defendant fails to sustain his burden under either prong of the standard, a
defendant's ineffective assistance of counsel claim fails. Strickland, 466 U.S. at
687.
Under the first prong, a defendant must show "counsel's acts or omissions
fell outside the wide range of professionally competent assistance considered in
light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366
(2008) (citation omitted). Our analysis under the first prong is highly deferential
to counsel. State v. Arthur, 184 N.J. 307, 318-19 (2005) (citing Strickland, 466
U.S. at 689). There is "'a strong presumption' that [counsel] provided reasonably
effective assistance" and counsel's "decisions followed a sound strategic
approach to the case[,]" State v. Pierre, 223 N.J. 560, 578-79 (2015) (quoting
A-2429-21
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Strickland, 466 U.S. at 689), even when a strategic decision turns out to be a
mistake, State v. Buonadonna, 122 N.J. 22, 42 (1991). A defendant may rebut
the presumption of effectiveness by proving trial counsel's actions were not
"sound trial strategy." Arthur, 184 N.J. at 319 (quoting Strickland, 466 U.S. at
689).
Under the second Strickland prong, a defendant must "affirmatively
prove" "a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." State v. Gideon, 244
N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 693-94). "A reasonable
probability is a probability sufficient to undermine confidence in the outcome."
Id. (citations omitted). Proof of prejudice under Strickland's second prong "is
an exacting standard." Id. at 551 (quoting Allegro, 193 N.J. at 367). A
defendant "must affirmatively prove prejudice" in a PCR petition to satisfy the
second prong of the Strickland standard. Ibid. (quoting Strickland, 466 U.S. at
693).
Defendant's counseled and pro se briefs include numerous arguments, all
of which we have carefully considered. For purposes of clarity, we consider
them separately as claims of ineffective assistance of trial counsel and of alleged
violations of his constitutional rights, including claims of ineffective assistance
A-2429-21
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of appellate counsel as they pertain to the alleged violations of constitutional
rights. We consider the arguments included in each of those categories in turn.
A.
Defendant argues trial counsel was ineffective by failing to conduct a
proper pretrial investigation. More particularly, defendant claims trial counsel
failed to: consult with an audio or sound expert to determine if any
communications that were otherwise inaudible or indecipherable on the
recordings from the interview room could be recovered or extracted from the
recordings; obtain reports from the Paterson Police Department that defendant
procured following his trial pursuant to an OPRA request; investigate facts in
the police officers' incident reports; challenge testimony regarding the victim's
injuries; and investigate "third-party guilt."
Where a defendant alleges trial counsel inadequately investigated a case,
the defendant must present competent evidence establishing what an
investigation would have revealed. State v. Porter, 216 N.J. 343, 355 (2013).
And, as noted, a defendant must present evidence establishing an ineffective
assistance of counsel claim by a preponderance of the evidence. See Gaitan,
209 N.J. at 350.
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Here, defendant did not present any evidence at the evidentiary hearing
establishing what the claimed omitted investigations would have revealed. That
is, defendant presented no evidence establishing that had his counsel consulted
with an audio expert, pertinent information could have been, or would have
been, extracted from the recordings. Similarly, defendant failed to demonstrate
what investigations of "third-party guilt," the reports from the Paterson Police
Department, and police incident reports would have revealed. And defendant's
conclusory claims—in his testimony and briefs on appeal—that counsel should
have conducted those investigations are insufficient to sustain his burden of
proving by a preponderance of the evidence trial counsel's performance was
deficient under Strickland's first prong. See State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999) (explaining "bald assertions" are insufficient to
support an ineffective assistance of counsel claim). Counsel's performance is
not deficient by failing to conduct an investigation that would have not revealed
anything that mattered. See, e.g., State v. O'Neal, 190 N.J. 601, 619 (2007)
(holding "[i]t is not ineffective assistance of counsel for defense counsel not to
file a meritless motion").
Defendant's claims trial counsel was ineffective by failing to conduct the
investigations and challenge the victim's testimony about her injuries also fail
A-2429-21
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because defendant did not affirmatively establish there is reasonable probability
that but for counsel's alleged errors, the result of defendant's trial would have
been different. Gideon, 244 N.J. at 551. Indeed, defendant did not present any
evidence at the hearing, and points to no evidence in his briefs on appeal,
establishing that he suffered prejudice under Strickland's second prong as a
result of trial counsel's alleged failures to investigate any of the matters or issues
he raised in his petition or the evidentiary hearing. For those reasons, we affirm
the PCR court's rejection of defendant's claim his trial counsel was ineffective
by failing to conduct proper pretrial investigations.
Defendant's other claims regarding trial counsel's ineffectiveness fail for
similar reasons. Defendant argues the PCR court erred by rejecting his claim
trial counsel had been ineffective by failing to object on chain-of-custody
grounds to the admission of the purse the victim identified at trial as having been
stolen from her during the robbery and the gun recovered from the building the
witnesses testified they had chased defendant through, and by failing to object
to the admissibility of the purse and gun on grounds they should have been
suppressed as "fruits of the poisonous tree." We find the claims without
sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2),
beyond the following brief comments.
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The fruit of the poisonous tree doctrine requires the suppression of
evidence seized as the result of a constitutional violation or based on evidence
seized as the result of a constitutional violation. See, e.g., Wong Sun v. United
States, 371 U.S. 471, 485 (1963); State v. Hemenway, 239 N.J. 111, 139 (2019).
Defendant argues trial counsel should have moved to suppress the purse and gun
as fruits of the poisonous tree because the court had determined at the Wade
hearing that the witnesses' out-of-court identifications of defendant were
inadmissible. The fruit of the poisonous tree doctrine, however, is inapplicable
to the seizure of the gun and purse because they were recovered by the police
prior to the witnesses' out-of-court identifications and, therefore, could not have
been fruits of those improperly obtained identifications.
Lacking any factual or legal bases supporting a valid suppression motion
under the fruit of the poisonous tree doctrine, trial counsel's failure to move to
challenge the admissibility of the gun and purse on those grounds was not
deficient performance under Strickland's first prong. O'Neal, 190 N.J. at 619;
see also State v. Worlock, 117 N.J. 596, 625 (1990). Defendant therefore also
could not, and did not, demonstrate prejudice under Strickland's second prong
based on counsel's purported errors.
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Similarly, defendant presented no evidence establishing a valid basis for
an objection to the admission of the gun and purse on chain-of-custody grounds.
"To satisfy the requirement of authenticating or identifying an item of evidence,
the proponent of the evidence must present evidence sufficient to support a
finding that the item is what its proponent claims." N.J.R.E. 901. The State
bore that burden as to the gun and purse.
To establish a proper foundation for admission of gun and purse, the State
was required to "show[ ]. . . an uninterrupted chain of possession" of each. State
v. Brunson, 132 N.J. 377, 393 (1993). "[W]here the incriminating object has
passed out of the possession of the original receiver and into the possession of
others, the 'chain of possession' must be established to avoid any inference that
there has been substitution or tampering." State v. Brown, 99 N.J. Super. 22, 27
(App. Div. 1968) (citation omitted).
The hearing record lacks any evidence establishing a valid basis
supporting an objection to the admission of the gun and purse on chain -of-
custody grounds. The police maintained possession of the gun following its
recovery after the robbery, and the victim retained the purse after it had been
returned to her following the robbery. Again, trial counsel was not ineffective
by failing to interpose a baseless objection to the admission of the evidence,
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Cummings, 321 N.J. Super. at 170, and defendant did not present evidence
establishing a reasonable probability that but for counsel's failure to interpose
the objection, the result of his trial would have been different, Gideon, 244 N.J.
at 551.
Defendant also failed to sustain his burden under Strickland on his
conclusory claims counsel had been ineffective by failing to properly cross-
examine witnesses and by failing to anticipate that the State would introduce
evidence concerning the victim's injuries. Defendant does not point to any
evidence establishing trial counsel did not properly cross-examine witnesses or
did not anticipate the State would present evidence concerning the victim's
injuries. But, even if he had, defendant did not affirmatively prove by a
preponderance of the evidence that he suffered any prejudice under Strickland's
second prong as a result of the purported errors. Ibid.
In sum, defendant's claims trial counsel was ineffective consist of nothing
more than conclusory assertions. See Cummings, 321 N.J. Super. at 170. None
of the claims is supported by evidence establishing trial counsel did not function
"as the 'counsel' guaranteed . . . by the Sixth Amendment" or that counsel's
alleged errors "prejudiced the defense." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Defendant failed to establish by a preponderance
A-2429-21
23
of the evidence that trial counsel had been ineffective under the Strickland
paradigm. We therefore affirm the PCR court's rejection of those claims.
B.
Defendant also vaguely argues he is entitled to PCR because he was
denied his right to a fair trial due to prosecutorial misconduct, errors in the jury
charge on the possessory weapons offenses, a lack of sufficient evidence
supporting his convictions, and the absence of DNA or fingerprint evidence
establishing he had possessed the gun that was recovered and introduced in
evidence. We reject the claims for a number of separate but equally dipositive
reasons.
First, defendant's claim he was denied his right to a fair trial due to alleged
prosecutorial misconduct—alleged inflammatory remarks by the State during
closing arguments at trial—is barred under Rule 3:22-5, which provides that "[a]
prior adjudication upon the merits of any ground for relief [in a PCR petition] is
conclusive whether made in the proceedings resulting in the conviction or in any
post-conviction proceedings brought pursuant to" Rule 3:22. Under the Rule,
an argument is precluded from consideration "if the issue raised is identical or
substantially equivalent to that adjudicated previously on direct appeal." State
v. Marshall, 173 N.J. 343, 351 (2002) (citations omitted).
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Defendant raised his prosecutorial misconduct claim on direct appeal. He
argued that the prosecutor's inflammatory comments during summation,
including "[i]t's your turn, get involved, convict on all charges, ladies and
gentlemen" amounted to prosecutorial misconduct. DeJesus, slip op. at 6. We
"strongly condemn[ed]" the prosecutor's comments, id. at 8, but determined they
had been fleeting and "not so egregious as to have deprived defendant of a fair
trial[,]" id. at 9 (citing State v. Smith, 167 N.J. 158, 181 (2001)). Thus, because
we considered and rejected the claim the comments had deprived defendant of
a fair trial, he is precluded from relitigating the issue on his PCR petition.
Marshall, 173 N.J. at 351; R. 3:22-5.
We are unpersuaded by defendant's remaining claims that he was denied
his right to a fair trial. We discern no error in the court's jury instructions on
the possessory weapons offenses. The absence of DNA evidence or fingerprint
evidence showing defendant possessed the gun presented a jury issue as to the
strength of the State's evidence, but it did not deny defendant a fair trial. And,
defendant makes no showing that any purported failure to provide him with
discovery—certain police reports—prior to trial resulted in a violation of his
right to a fair trial because defendant did not establish that the alleged failure to
provide the reports deprived him of exculpatory evidence or prevented him from
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presenting an available defense. Cf. State v. Szemple, 247 N.J. 82, 100-01
(2021) (citation omitted) (finding "suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith o r bad
faith of the prosecution").
We also reject defendant's claim he was deprived of a fair trial as result
of the trial court's cumulative errors. Because we have determined defendant
was not deprived of any rights affecting his entitlement to a fair trial, he is unable
to establish there is any cumulative error that rendered either his trial or the
jury's verdict unfair. State v. Jenewicz, 193 N.J. 440, 473 (2008).
We note defendant also argues appellate counsel was ineffective by failing
to assert on direct appeal the claims he now makes in support of his contention
he was denied a fair trial. The argument fails because appellate counsel was not
ineffective by failing to make meritless arguments on appeal, see, e.g., O'Neal,
190 N.J. at 619, and, for the reasons we have explained, defendant's claims he
was denied a fair trial lack support in the law and facts.
To the extent we have not expressly addressed any of defendant's
remaining arguments, we find they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
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Affirmed.
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