STATE OF NEW JERSEY VS. LAQUAY J. GIBBS (14-10-2966, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-2422-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAQUAY J. GIBBS, a/k/a
LAQUAY LIVINGSTON,
KEVIN PERRY, JOHN
GIBBS and KEVIN GIBBS,
Defendant-Appellant.
_______________________________
Submitted September 16, 2019 – Decided November 19, 2019
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No. 14-10-
2966.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Melinda A. Harrigan, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Laquay J. Gibbs appeals from the denial of his post-
conviction relief (PCR) petition without an evidentiary hearing. He argues on
appeal:
POINT I
DEFENDANT'S CLAIMS THAT HIS PLEA
COUNSEL WAS INEFFECTIVE FOR FAILING TO
MOVE TO DISMISS THE INDICTMENT AND FOR
FAILING TO MAKE ANY ARGUMENT IN
MITIGATION OF SENTENCE WERE PRIMA
FACIE CLAIMS WHICH ENTITLED HIM TO
POST-CONVICTION RELIEF, OR IN THE
ALTERNATIVE TO AN EVIDENTIARY HEARING.
POINT II
APPELLATE COUNSEL WAS INEFFECTIVE FOR
FAILING TO NOTICE AND RAISE ON DIRECT
APPEAL THE TRIAL COURT'S FAILURE TO
AFFORD DEFENDANT HIS RIGHT OF
ALLOCUTION.
We are unpersuaded by either contention and affirm.
Absent an evidentiary hearing, our review of the factual inferences
drawn from the record by the PCR court is de novo. State v. Blake, 444 N.J.
Super. 285, 294 (App. Div. 2016). Likewise, we review de novo the PCR
court's legal conclusions. Ibid.
We previously addressed defendant's direct appeal involving the trial
court's denial of his motion to suppress evidence. State v. Gibbs, No. A-
2 A-2422-18T4
004461-14 (App. Div. March 1, 2017) (slip. op. at 1). There we set forth the
salient facts of this case that we will not repeat here unless they are germane to
this appeal. Suffice it to say, as set forth in defendant's merits brief, the
victim, A.R., reported to police that three days prior "a black male, about 5'9''
[tall], very well[-]built, with a dark complexion[,]" "injected her with heroin
and repeatedly sexually assaulted her, and at one point[,] held a black gun to
her head" in Room 311 of a hotel which she named. The State alleged
defendant threatened to shoot A.R. if she left the room. When police went to
Room 311, they found defendant in the presence of two other females. They
also recovered folds of heroin and a black and gray handgun.
Defendant first contends his trial counsel was ineffective because he
failed to move to dismiss the indictment returned by the grand jury charging
him with: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count
one), third-degree unlawful possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10(a)(1) (count two), third-degree possession of a controlled
dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count
three), second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count four), second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count five), fourth-degree unlawful possession of a
defaced firearm, N.J.S.A. 2C:39-3(d) (count six), second-degree possession of
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a weapon during a drug offense, N.J.S.A. 2C:39-4.1 (count seven), third-
degree terroristic threats, N.J.S.A. 2C:12-3(a) (count eight), fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count nine), fourth-degree
possession of prohibited bullets, N.J.S.A. 2C:39-3(f) (count ten) and second-
degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1)
(count eleven).
Defendant avers a motion to dismiss the indictment would have been
granted—satisfying his burden to show that the proposed motion would have
been successful if filed, see State v. Fisher, 156 N.J. 494, 501 (1998)—because
the assistant prosecutor: "misled the grand jury by having the witness agree to
his conclusion that the gun seized matched the description of the weapon given
by A.R." even though the descriptions did not match; "improperly influenced
the grand jury by [introducing] testimony . . . that [d]efendant was engaged in
the promotion of prostitution or human trafficking, when no such charges were
before the grand jury"; and elicited before the grand jury testimony from the
police witness that defendant admitted in his statement to the police to having
sex with A.R., even though he never made such an admission to police when
he gave them a statement.
"Because an indictment should only be quashed on the 'clearest and
plainest grounds,' the conduct of a prosecutor should not warrant dismissal
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unless it clearly invades the grand jury's decision-making function." State v.
Laws, 262 N.J. Super. 551, 562 (App. Div. 1993) (citation omitted) (quoting
State v. Dixon, 125 N.J. 223, 237 (1991)); see also State v. Hogan, 336 N.J.
Super. 319, 344 (App. Div. 2010) (noting that the standard for a dismissal of
an indictment for prosecutorial misconduct "can be satisfied by showing that
the grand jury would have reached a different result but for the prosecutor's
error."). Under that lens, we determine defendant has not demonstrated that
the elicited testimony warrants dismissal of the indictment. See Laws, 262
N.J. Super at 562; Hogan, 335 N.J. Super. at 344.
Contrary to defendant's suggestion, the State never presented evidence
about A.R.'s description of the gun, including the actual color of the gun, to
the grand jury. 1 The police witness simply confirmed that A.R. described the
gun "in relatively good detail," and that fact, in addition to her description of
the perpetrator and his actions in Room 311, provided "some corroboration" of
A.R.'s allegations "in some sense." Considering that defendant does not
dispute he possessed the handgun and pleaded guilty to possessing the
handgun as a convicted person, he has not demonstrated that the grand jury
1
According to police reports, A.R. "described the gun as being black" and the
weapon seized from Room 311 was "a grey semi[-]auto[matic] 9mm handgun
with a black grip."
5 A-2422-18T4
result would have been different but for the presentation of the gun-related
evidence. See Hogan, 336 N.J. Super. at 344.
The testimony about defendant's actions relating to prostitution is not
argued in proper context. The assistant prosecutor did not suggest that
defendant was being charged with any crime involving prostitution or
trafficking. He told the grand jurors defendant denied being associated with
prostitutes, and defendant claimed to be paying for four rooms in the hotel in
order to provide protection for the women occupying them from a pedophile
on premises. And before eliciting the testimony, the assistant prosecutor made
clear that that, in questioning the police witness about this issue, they were
"talking common terms here . . . [and] not talking specifically about this
case[.]"
While the prosecutor introduced general testimony regarding how a pimp
"breaks a girl," that evidence was not used to support a promoting prostitution
charge; rather, it was used to demonstrate that defendant's version of events,
given in his statement to police, was not credible. Specifically, the detective's
description of how a pimp breaks a girl was consistent with A.R.'s statement to
the police regarding how she was lured to Atlantic City and how her
relationship with defendant devolved. In perspective, the testimony was not,
as defendant argues, "confusing and prejudicial." Moreover, the testimony had
6 A-2422-18T4
no capacity to substantially influence the grand jury's return of the indictment,
given the prosecutor's caveat to the panel. Hogan, 336 N.J. Super. at 344.
Defendant has thus failed to show that a motion to dismiss the indictment
because of evidence relating to the gun or prostitution evidence would have
been granted. See Fisher, 156 N.J. at 501; Hogan, 366 N.J. Super. at 344.
We do agree that the assistant prosecutor elicited from the witness that
defendant admitted to having sex with A.R.:
Q. Okay, he then admits that he did have sex with one
of the females . . . I don't want to say her name but is
that A.R.? I'm sorry, the same female?
A. I believe so.
Q. She was referred to – I'll show you the reports I
don't want to go ahead and say any names. Okay, I'm
going to [show] you what's been marked as [S]tate's
exhibit 1. And let's see here – [r]ight here. He's
admitting that he had sex with at least one of the
females.
A. Yes.
Q. Would that name there is that A.R.? Do you believe
that's A.R.?
A. Yes.
Q. Okay and he's denying he had sex with some of
these other females that he pays for the rooms and
other rooms right?
A. Right.
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Q. So, at least he's admitting that he had sex with A.R.
He doesn't admit to ever holding the gun to her head.
He doesn't admit to threatening her. He doesn’t' admit
to shooting her up with heroin, is that correct?
A. Yes, he does not admit to any of those.
Although he admitted to having sex with the women who were present in
his room when police arrested him, there is no evidence defendant admitted to
having sex with A.R. The assistant prosecutor's blunder, however, had no
impact on the return of the other indicted crimes; all other counts in the
indictment, including aggravated sexual assault, were dismissed pursuant to
the plea deal. Even if counsel moved to dismiss any charge based on the
assistant prosecutor's improper elicitation of defendant's nonexistent
admission, the certain persons count, to which defendant pleaded guilty, would
have survived, as would have the other nine counts of the indictment related to
guns and drugs.
We reject defendant's argument that the inclusion of the aggravated
sexual assault count provided the State with undue leverage that the State used
to obtain defendant's guilty plea. Notwithstanding the added exposure
defendant faced on the aggravated sexual assault count, we are not convinced
he would have rejected the State's recommended offer of a seven-year prison
term with a five-year period of parole ineligibility, and dismissal of the
remaining charges, even if that count was dismissed. See State v. O'Donnell,
8 A-2422-18T4
435 N.J. Super. 351, 371 (App. Div. 2014) (holding a defendant "must
convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.") (quoting Padilla v. Kentucky, 559 U.S.
356, 372 (2010)).
Defendant's prodigious juvenile record as well as his prior adult
convictions, violations of probation and imposition of a suspended sentence
exposed him to a higher sentence than the seven-year midpoint term imposed.
Indeed, defendant was eligible to be sentenced to an extended term as a
persistent offender. N.J.S.A. 2C:44-3(a). And the five-year period of parole
ineligibility was mandatory. N.J.S.A. 2C: 39-7(b). Further, defendant faced
consecutive sentences if convicted of any of the other remaining counts.
In State v. Wright, 155 N.J. Super. 549, 553 (App. Div. 1978), we cited
the "strong legislative policy in this State with respect to gun control, designed
to protect the public, which places restrictions on those who may carry such
weapons and is intended to prevent criminal and other unfit elements from
acquiring and possessing them." We then stated:
The additional penalty under N.J.S.A. 2A:151-8 may
either be concurrent with, or consecutive to, that for
the conviction under N.J.S.A. 2A:151-41(a). The
Legislature could not have intended that a convicted
felon who possesses or carries an operable gun in a
place not excepted from the permit requirements of
N.J.S.A. 2A:151-41(a), be treated the same as a
defendant who is not such a felon—a result which
9 A-2422-18T4
would flow from merging convictions under that
provision and N.J.S.A. 2A:151-8.
[Id. at 555 (citation omitted).]
Based on that reasoning, we held that the convictions for the weapon offenses
did not merge. Ibid. We have applied Wright's merger-holding to the
successor statutes violated by defendant. State v. Lopez, 417 N.J. Super. 34,
37 n.2 (App. Div. 2010).
The same facts support our refutation of defendant's argument that
sentencing counsel was ineffective for failing to argue for a lower base term.2
Assuming counsel was ineffective, we are unconvinced a lower term was
attainable, and defendant failed to meet the second Strickland 3 prong by
establishing there was a reasonable probability that, but for counsel's error, he
2
We agree with defendant that the PCR judge erred in holding his sentencing
arguments were barred under Rule 3:22-4. He did not raise an excessive
sentencing argument that would be barred. State v. Flores, 228 N.J. Super.
586, 591-92 (App. Div. 1988). His ineffective assistance of sentencing
counsel argument is cognizable in a PCR petition. State v. Preciose, 129 N.J.
451, 460 (1992).
3
The test announced by the United States Supreme Court for determining if
counsel was ineffective, adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), requires a defendant to first show that counsel was
deficient or made errors so egregious that counsel was not functioning
effectively as guaranteed by the Sixth Amendment of the Unites States
Constitution. Strickland v. Washington, 466 U.S. 668, 687 (1984). To meet
the second prong, a defendant must also demonstrate that there exists "a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694.
10 A-2422-18T4
would have rejected the plea agreement and gone to trial. State v. DiFrisco,
137 N.J. 434, 527-28 (1994).
We determine the balance of defendant's arguments are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We add only that his counsel was not ineffective for failing to present
mitigating factors. Defendant mentions only mitigating factor eleven, N.J.S.A.
2C: 44-1(b)(11), but offers no support for his bald assertion that it should have
been considered by the judge in sentencing. Moreover, the presentence report
lists defendant's employment status as unemployed,4 and he had "no present
income or personal assets," belying his contention that his daughter—who
lived with her mother—would have been adversely impacted by his
incarceration.
Defendant did not raise before the PCR court that both his sentencing
and appellate counsel were ineffective because they did not argue that he was
not afforded his right of allocution at sentencing and, as such, we will not
address those arguments on appeal. State v. Robinson, 200 N.J. 1, 20 (2009).
The PCR court correctly denied defendant's request for an evidentiary
hearing; he did not establish a prima facie case warranting one. R. 3:22-10(b);
4
The presentence report also provides, "[t]he defendant reported to be self-
employed as the owner/operator of an entertainment business prior to his arrest
for the present case"; apparently no support was provided for his assertion.
11 A-2422-18T4
Preciose, 129 N.J. at 462-63. As we have determined, he failed to establish "a
reasonable likelihood of succeeding" under the familiar Strickland test. Id. at
463.
Affirmed.
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