STATE OF NEW JERSEY VS. LAWRENCE D. THOMAS, JR. (12-01-0191, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-2763-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAWRENCE D. THOMAS, JR.,
Defendant-Appellant.
______________________________
Submitted March 11, 2019 – Decided March 21, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 12-01-0191.
Joseph E. Krakora, Public Defender, attorney for
appellant (Louis H. Miron, Designated Counsel, on the
brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Marky A. Suazo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant appeals from a July 24, 2017 order denying his petition for
post-conviction relief (PCR). Defendant contends that his trial counsel rendered
ineffective assistance by failing to call "many" witnesses and by "pressur[ing]"
defendant not to testify. 1 We disagree and affirm.
On appeal, defendant argues:
POINT I
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PCR PETITION BECAUSE THE
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
DEPRIVED [DEFENDANT] OF A FAIR TRIAL AND
RENDERED THE JURY'S VERDICT AS
FUNDAMENTALLY UNRELIABLE.
POINT II
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PCR PETITION WITHOUT
HAVING CONDUCTED AN EVIDENTIARY
HEARING TO ADDRESS [DEFENDANT'S] CLAIMS
FOR WHICH HE ESTABLISHED A PRIMA FACIE
CASE IN SUPPORT OF THE INEFFECTIVE
ASSISTANCE OF COUNSEL.
We conclude that defendant's contentions lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the
1
We affirmed defendant's drug and weapons convictions, State v. Thomas, No.
A-3735-12 (App. Div. Jan. 13, 2015), and the Supreme Court denied defendant's
petition for certification.
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reasons set forth by Judge Christopher R. Kazlau in his well-reasoned and
thorough oral decision spanning twenty-nine pages in the transcript dated July
10, 2017. We add the following brief remarks.
A defendant is entitled to an evidentiary hearing only when he "has
presented a prima facie [case] in support of [PCR]," State v. Marshall, 148 N.J.
89, 158 (1997) (first alteration in original) (quoting State v. Preciose, 129 N.J.
451, 462 (1992)), meaning that a "defendant must demonstrate a reasonable
likelihood that his . . . claim will ultimately succeed on the merits." Ibid. For a
defendant to obtain relief based on ineffective assistance grounds, he is obliged
to show not only the particular manner in which counsel's performance was
deficient, but also that the deficiency prejudiced his right to a fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v. Fritz, 105
N.J. 42, 58 (1987). We conclude that defendant failed to demonstrate a
reasonable likelihood that his PCR claim will ultimately succeed on the merits.
And we conclude further that defendant has failed to satisfy either prong of
Strickland.
Defendant's trial counsel called two witnesses: one of defendant's sisters
(the sister) and defendant's lifelong friend (the friend), who was arrested wit h
defendant on the date of the incident. The PCR certifications of his other sister,
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mother, and other friend assert that defendant did not live at the residence, which
is what the sister and friend said at trial. Thus, they would not have added any
new facts. Instead, they would have reiterated the testimony of the sister and
the friend. Even if trial counsel should have called the three witnesses – which
is not the case – there is no "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694.
Contrary to defendant's contention, trial counsel did not dissuade him
from testifying. During the trial, the judge questioned defendant on the record
to determine whether defendant was knowingly and voluntarily waiving his right
to testify:
Judge: You understand that you have the absolute right
to testify or not to testify in any [c]ourt proceeding?
Defendant: I understand.
Judge: Okay. Now, [trial counsel] has provided legal
advice to you, but ultimately the decision is yours to
make. You could testify or not testify. It has been
explained to you that once you are on the stand any
prior convictions can be used to impeach your
credibility.
Defendant: Yes, sir.
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Judge: Understood? And as a result of this, this has
become part of what you might call a trial strategy for
you not to testify?
Defendant: Yes, sir.
Judge: In consultation with [trial counsel] you have
made this decision?
Defendant: Yes, I understand.
Defendant conceded that the decision about whether to testify was solely his and
that he knew if he testified, his prior convictions would be evidential. We
conclude that defendant's election not to testify was knowing, voluntary, and
without any evidence of pressure or coercion.
Affirmed.
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