STATE OF NEW JERSEY VS. HOWARD L. RYAN Â (08-11-0495, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4773-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOWARD L. RYAN,
Defendant-Appellant.
___________________________
Submitted October 24, 2017 – Decided November 15, 2017
Before Judges Reisner and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No.
08-11-0495.
Joseph E. Krakora, Public Defender, attorney
for appellant (Carolyn V. Bostic, Designated
Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (David M. Galemba,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Howard L. Ryan appeals from an April 27, 2016 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
A jury found defendant guilty of attempting to lure or entice
a minor into a motor vehicle with a purpose to commit a criminal
offense with or against the child, N.J.S.A 2C:13-6. Defendant was
subsequently sentenced to a term of seven and one-half years with
a five year period of parole ineligibility. Defendant appealed
both the conviction and sentence. We rejected defendant's
contentions and affirmed. See State v. Ryan, A-4609-10 (App. Div.
May 22, 2012). The Supreme Court denied defendant's petition for
certification. See State v. Ryan, 213 N.J. 45 (2013).
Defendant filed a PCR petition alleging his trial counsel was
ineffective based on three specific grounds: counsel failed to
file a Miranda1 motion; counsel failed to review a taped statement
by the victim prior to trial and failed to use the taped statement
effectively in cross-examination; and counsel failed to meet with
defendant and investigate facts/witnesses supporting the charge
and possible defenses.
The PCR judge, who did not preside over defendant's criminal
trial, heard oral argument on the PCR application without
conducting an evidentiary hearing. The PCR judge denied
defendant's petition.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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The facts relevant to defendant's PCR application were set
forth in our decision denying defendant's direct appeal. We need
not repeat those facts in disposing of this appeal as they are not
necessary for our review of defendant's arguments related to the
denial of his PCR petition.
In her comprehensive written decision on defendant's PCR
application, Judge Linda L. Lawhun found that there was no
meritorious basis for a Miranda motion suppressing defendant's
statements. She also found that while trial counsel did not listen
to the victim's taped statement prior to commencement of the trial,
the trial judge permitted a brief adjournment during the trial to
permit defense counsel to review the audio tape.2 The PCR judge
concluded that trial counsel was not ineffective in his use of the
tape to cross-examine the victim. She found that defendant's
remaining claims, including the claims in defendant's pro se PCR
petition, were bald assertions with no evidentiary support, were
duplicative of counsel's arguments in support of the PCR petition,
or could have been raised as part of defendant's direct appeal.
Based on those rulings, the PCR judge determined that
defendant failed to establish a prima facie case of ineffective
assistance of counsel in accordance with Strickland v. Washington,
2
Defense counsel asserted that the audio tape was not provided in
discovery.
3 A-4773-15T1
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984), and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42 (1987).
On appeal from the denial of his PCR petition, defendant
raises the following arguments:
POINT ONE
THE PCR COURT ABUSED ITS DISCRETION BY
REFUSING TO HOLD AN EVIDENTIARY HEARING WHERE
DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF U.S. CONST. AMENDS. VI AND XIV,
AND N.J. CONST. ART. I, PAR. 10.
A. Trial Counsel's Performance Was
Deficient Because He Failed to
Investigate Potential Alibi and/or
Corroborating Defense Witnesses Who
Were Either Identified by the
Defendant or Obvious From the
Discovery.
B. Trial Counsel Was Ineffective
for Failing to File a Motion to
Suppress the Defendant's Alleged
Statement to Corporal Daniels Where
the Defendant Was Subject to a
Custodial Interrogation as Required
by Miranda.
C. Trial Counsel's Cross-
Examination of the Victim was
Deficient Under Strickland Because
He Did Not Effectively Utilize Her
Audiotaped Statement to the Police,
Which Trial Counsel Failed to Secure
and Listen to Prior to the Start of
Trial, to Impeach Her Testimony and
Credibility.
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To establish a prima facie claim of ineffective assistance
of counsel, a convicted defendant must satisfy the two-part test
enunciated in Strickland by demonstrating that: (1) counsel's
performance was deficient, and (2) the deficient performance
actually prejudiced the accused's defense. Strickland, supra, 466
U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also
Fritz, supra, 105 N.J. at 58.
In reviewing ineffective assistance claims, courts apply a
strong presumption that a defendant's trial counsel "rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, supra,466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
"[C]omplaints 'merely of matters of trial strategy' will not serve
to ground a constitutional claim of inadequacy[.]" Fritz, supra,105 N.J. at 54 (citation omitted). To establish a prima facie
claim of ineffective assistance of counsel, a defendant must
demonstrate a reasonable likelihood of succeeding under the
Strickland/Fritz test. See State v. Preciose, 129 N.J. 451, 463
(1992). To demonstrate the likelihood of succeeding under the
Strickland/Fritz test, a defendant "must do more than make bald
assertions[,] . . . [and] must allege facts sufficient to
demonstrate counsel's alleged substandard performance." State v.
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Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,
162 N.J. 199 (1999).
The PCR judge found no merit to defendant's contention that
his counsel was ineffective because he should have filed a Miranda
motion to suppress defendant's statements to the police. In this
case, the victim flagged down a nearby police officer
contemporaneous to her encounter with defendant. The victim told
the officer that a man in a car approached her and offered her
money. The officer saw the vehicle described by the victim and
proceeded to stop defendant's car. The officer then asked
defendant for his driving credentials and inquired what he was
doing near the victim. The officer stopped defendant's car a
second time and questioned defendant as to his purpose for being
in town. Although the officer stopped defendant twice, and asked
questions related to defendant's reasons for being in the area,
the officer let defendant drive away both times. Defendant was
never asked to step outside his car. At no time was defendant's
freedom restricted so as to amount to a custodial interrogation.
Moreover, defendant's statements to the officer were voluntary and
provided in response to the inquiries related to the officer's
investigation.
Under these circumstances, we agree that Miranda warnings
were not required a result of the brief discussions between
6 A-4773-15T1
defendant and the officer. The principles of Miranda were not
intended to hamper or inhibit police engaging in "on-the-scene
questioning as to facts surrounding a crime or other general
questioning of citizens in the fact-finding process. . . ."
Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d
at 725. In responding to the officer who was making inquiry,
defendant was neither under arrest nor undergoing custodial
interrogation. See State v. Smith, 374 N.J. Super. 425, 430-31
(App. Div. 2005). In this situation, a suppression motion would
not have been successful, and defense counsel was not ineffective
for failing to file a Miranda motion. See State v. Worlock, 117
N.J. 596, 625 (1990).
As for defendant's contention that his counsel was
ineffective in failing to listen to the audio recording of the
victim's statement and then use that statement effectively during
cross-examination, the PCR judge correctly observed that defense
counsel requested, and was granted, an adjournment during the
trial so that counsel could listen to the victim's recorded
statement. Defense counsel continued cross-examination of the
victim the next morning, after counsel had ample opportunity to
listen to the audio recording of the victim's statement and
formulate his cross-examination questions. We listened to the
audio recording of the victim's statement, as did the PCR judge,
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and agree that the victim's trial testimony did not contradict her
recorded statement to the police. Defendant failed to demonstrate
that defense counsel's cross-examination of the victim was
deficient so as prejudice his defense.
Lastly, defendant asserts defense counsel was ineffective in
failing to meet with him and investigate potential witnesses,
including defendant's wife who defendant claims would have
corroborated his explanation for being in the area on the day of
the incident. Rule 3:22-10(c) states that "[a]ny factual assertion
that provides the predicate for a claim of relief [in a petition
for PCR] must be made by an affidavit or certification . . . and
based upon personal knowledge of the declarant before the court
may grant an evidentiary hearing." Under this rule, a defendant
asserting a claim of ineffective assistance of counsel in a PCR
petition based on his counsel's failure to produce a witness at
trial must present a certification by that witness concerning the
testimony the witness would have given. See State v. Petrozelli,
351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, supra,321 N.J. Super. at 170-71.
Defendant was unable to identify or provide any information
about the group of girls or the group of males who were allegedly
in the vicinity of the victim when defendant claims he stopped to
ask for directions. Defendant failed to provide information that
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would have allowed defense counsel to locate and question these
claimed witnesses and obtain affidavits in support of his PCR
application. More importantly, defendant speculates that these
potential witnesses, if they could have been located by defense
counsel, overheard his conversation with the victim and would have
corroborated his testimony. In a PCR petition it is defendant's
burden to present witnesses he claims would have been available
to testify and specify the nature of their testimony. See
Cummings, supra, 321 N.J. Super. at 171.
As for the failure to call defendant's wife, who allegedly
would have corroborated defendant's reasons for being in the area
on the day of the incident, his wife died in 2014 and thus could
not confirm or deny defendant's PCR petition claim by way of a
supporting affidavit.3 Moreover, as the PCR judge noted,
defendant's wife was not with him when the offense occurred and
thus could not have known what defendant was doing at the time of
the incident. Consequently, the PCR judge found that the testimony
of defendant's wife would not have been sufficient to create "a
reasonable doubt with respect to an essential feature of the
State's case." State v. Fortin, 178 N.J. 540, 591 (2004).
3
At no time subsequent to his conviction, until his wife's death
in 2014, did defendant attempt to obtain a corroborating affidavit
from his wife as to defendant's reasons for being in town on the
date of the incident.
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Based on our review of the record, we are satisfied that
defendant failed to demonstrate that he was denied effective
assistance counsel to meet the Strickland/Fritz test.
Affirmed.
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