STATE OF NEW JERSEY VS. PIERRE A. DENEUS(10-06-1382, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3133-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PIERRE A. DENEUS, a/k/a HARRY
JEAN-PIERRE,
Defendant-Appellant.
____________________________
Submitted April 26, 2017 – Decided June 21, 2017
Before Judges Gooden Brown and Farrington.
On appeal from the Superior Court
of New Jersey, Law Division,
Essex County, Indictment No. 10-06-1382.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated Counsel,
on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor,
attorney for respondent (Frank J. Ducoat, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Pierre Deneus appeals from the February 8, 2016
order of the trial court denying his post-conviction relief (PCR)
petition on the papers without an evidentiary hearing. We affirm.
We glean the following facts from the record. Following a
jury trial, defendant was convicted on February 22, 2011, of second
degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and related charges. He
was sentenced on September 26, 2011, to an aggregate term of
twenty-six years with a fifteen-year parole disqualifier subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The
charges stemmed from defendant's abduction of a thirteen-year-old
girl off the street, after which defendant drove her to his home,
offered her money for sex, and attempted to have sex with her
before she was able to escape. During defendant's incarceration
awaiting trial, he offered a fellow inmate $5000 to kill several
witnesses, including the victim, her mother, and defendant's
roommate. Defendant testified at trial, denying all the charges
and offering alternative explanations.
On March 24, 2014, this court affirmed defendant's conviction
on direct appeal, but "remanded for re-sentencing on counts ten,
eleven, twelve and thirteen, and for consideration of defendant's
arguments as to the sufficiency of the evidence supporting
defendant's conviction for second-degree witness tampering on
count ten." State v. Pierre Deneus, A-3698-11 (App. Div. March
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24, 2014), slip. op. at 24. Our Supreme Court denied defendant's
petition for certification. State v. Deneus, 220 N.J. 40 (2014).
Defendant was re-sentenced on May 23, 2016, to an aggregate
fifteen-year term subject to NERA.
Defendant filed a pro se petition for PCR on November 5,
2014. With the help of assigned counsel, he later filed an amended
PCR petition on March 13, 2015. Defendant's petition alleged that
both trial counsel and appellate counsel were ineffective for
failing to pursue an intoxication defense, for not raising the
issue of mistaken identification, and for not attempting to locate
surveillance cameras on the street where the kidnapping occurred.
In addition, defendant argued that his constitutional rights were
violated because the police illegally wiretapped his phone,
entrapped him, and because the prosecutor committed misconduct at
trial.
Oral argument was held before Judge Richard T. Sules on August
7, 2015. On February 8, 2016, Judge Sules issued a written
decision and order denying PCR without an evidentiary hearing. In
his decision, Judge Sules found defendant had failed to set forth
a prima facie case of ineffective assistance of counsel, noting
there was no evidence of intoxication, no evidence that defendant
and the victim were of different races to support a claim of cross-
racial misidentification, and no evidence surveillance cameras
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existed on 18th Avenue, in defendant’s home, or in the Essex County
Jail.
Judge Sules found trial counsel could have reasonably chosen
not to pursue an intoxication defense and "[[t]he trial court]
will not second guess trial counsel's strategy." As to the claim
that trial counsel was ineffective for failing to raise the issue
of cross-racial identification, Judge Sules found that defendant
"failed to substantiate any claim that he and the victim were of
different races."
Regarding the issue of locating surveillance cameras, Judge
Sules rejected defendant's argument that trial counsel was
ineffective for failing to locate cameras on 18th Avenue that
petitioner claims would have filmed his initial interaction with
the victim because "[d]efendant [does] not argue how any
surveillance video, if any even existed, would have introduced
reasonable doubt into his case." Judge Sules further noted
defendant raised this issue with appellate counsel, but defendant
did not specify where a camera that captured the incident could
be found, nor how any footage might help his case. Defendant
simply stated that the footage would "deplict [sic] contrary to
what's alleged by the victim." Appellate counsel asked for
clarification on "what [defendant] meant by the cameras," which
defendant did not provide.
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Judge Sules also found there was no evidence of wiretapping
in the case, nor was there any evidence of entrapment. Finally,
Judge Sules noted no evidence of prosecutorial misconduct,
specifically, no evidence that the trial prosecutor participated
in either wiretapping or entrapment.
On April 5, 2016, defendant filed a notice of appeal
of Judge Sules' February 8, 2016, denial of PCR. On
appeal, defendant abandons his claims as to wiretapping,
entrapment, and prosecutorial misconduct, and raises the
following contention:
POINT I
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING ON MR. DENEUS'S CLAIM THAT
TRIAL AND APPELLATE COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL.
We review the PCR court's findings of fact under a clear
error standard and conclusions of law under a de novo standard.
See State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied,
545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However,
where, as in this case, "no evidentiary hearing has been held, we
'may exercise de novo review over the factual inferences drawn
from the documentary record by the [PCR judge].'" State v. Reevey,
417 N.J. Super. 134, 146-47 (App. Div. 2010) (quoting Harris,
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supra, 181 N.J. at 421), certif. denied, 206 N.J. 64 (2011)
(alteration in original).
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Preciose, 129 N.J. 451,
459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled
to post-conviction relief if there was a "substantial denial in
the conviction proceedings" of defendant's rights under the
Constitution of the United States or the Constitution or laws of
the State of New Jersey. Preciose, supra, 129 N.J. at 459
(citations omitted). "A petitioner must establish the right to
such relief by a preponderance of the credible evidence." Ibid.
"To sustain that burden, specific facts" that "provide the court
with an adequate basis on which to rest its decision" must be
articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). It is,
therefore, only necessary for us to review the facts and legal
principles that pertain to this issue.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Rather, trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of ineffective
assistance, material issues of disputed fact lie outside the
record, and resolution of the issues necessitate a hearing. R.
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3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). "Rule
3:22-10 recognizes judicial discretion to conduct such hearings."
State v. Preciose, supra, 129 N.J. at 462.
A PCR court deciding whether to grant an evidentiary hearing
"should view the facts in the light most favorable to a defendant
to determine whether a defendant has established a prima facie
claim." Id. at 462-63. "To establish a prima facie claim of
ineffective assistance of counsel, a defendant must demonstrate
the reasonable likelihood of succeeding under the test set forth
in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674,698 (1984), and United States v. Cronic,
466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which [our
Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987)."
Id. at 463.
Under the Strickland standard, a petitioner must show
counsel's performance was both deficient and prejudicial. State
v. Martini, 160 N.J. 248, 264 (1999). The performance of counsel
is "deficient" if it falls "below an objective standard of
reasonableness" measured by "prevailing professional norms."
Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064-65, 80
L. Ed. 2d at 693-94. "This requires showing that counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Fritz, supra,
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105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, "the defendant must
show that the deficient performance prejudiced the defense." Ibid.
"This requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable." Ibid. "Unless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable."
Ibid.
In determining whether defense counsel's representation was
deficient "'[j]udicial scrutiny must be highly deferential,' and
must avoid viewing the performance under the 'distorting effects
of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting
Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.
2d at 694). Because of the inherent difficulties in evaluating a
defense counsel's tactical decisions from his or her perspective
during trial, "a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'" Strickland, supra,
466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95 (quoting
8 A-3133-15T2
Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L.
Ed. 83, 93 (1955)).
In determining whether defense counsel's alleged deficient
performance prejudiced the defense, "[i]t is not enough for the
defendant to show that the errors had some conceivable effect on
the outcome of the proceeding." Id. at 693 104 S. Ct. at 2067,
80 L. Ed. 2d at 697. Rather, defendant bears the burden of showing
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." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also Harris, supra,
181 N.J. at 432.
Judged by these standards, we are convinced that defendant
failed to make a prima facie showing of ineffective assistance of
trial counsel within the Strickland/Fritz test warranting an
evidentiary hearing. There is no basis for concluding that trial
or appellate counsel's performance was deficient. We agree with
the PCR court that trial counsel's conduct falls within the wide
range of reasonable professional assistance. We further agree
with the PCR court that defendant failed to put forth any factual
basis for his contentions regarding his appellate counsel's
performance. Defendant has failed to articulate a "[s]ubstantial
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denial in the conviction proceedings" of his rights under the
Constitution of the United States or the Constitution or laws of
the State of New Jersey. State v. Preciose 129 N.J. 451, 459
(1992).
Affirmed.
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