STATE OF NEW JERSEY VS. JEROME WRIGHT(12-04-0309, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0424-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEROME WRIGHT, a/k/a JAHID
RICHARDSON, JEROME A. TOWNS,
PETEY, E'KIM MOORE, ANTHONY KING,
ERIC LASURE and DAMON TUCKER,
Defendant-Appellant.
____________________________________
Submitted October 23, 2017 – Decided November 20, 2017
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
12-04-0309.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent
(Christopher W. Hsieh, Chief Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jerome Wright appeals from the denial of his
petition for post-conviction relief (PCR) without an evidentiary
hearing. For the reasons that follow, we affirm.
In 2013, defendant pled guilty to first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a), and two counts of first-
degree robbery, N.J.S.A. 2C:15-1(a)(1). He was sentenced to a
thirty-nine year term of imprisonment in the aggregate, subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves
Act, N.J.S.A. 2C:43-6(c). Defendant filed a direct appeal,
arguing only that his sentence was excessive. We affirmed his
sentence. See State v. Wright, No. A-5627-12 (App. Div. Nov.
20, 2013).
The facts underlying defendant's convictions are as
follows. Defendant approached a woman on the street in
Paterson, pointed a gun to her back, and instructed her to get
down and turn over what she had in her possession. The victim
complied, giving defendant her wallet and car keys. Minutes
later, defendant approached a couple, took out his gun, and told
them to get down and turn over what they had in their
possession. The woman gave defendant her purse. The man, an
off-duty police officer, reached for his gun but defendant shot
him. The victim subsequently died from his wounds. Upon his
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apprehension, defendant confessed to committing the robberies
and firing the gun that killed the male victim.
In 2015, defendant filed a PCR petition. As for those
contentions relevant to the issues on appeal, defendant claimed
plea counsel failed to find witnesses that could have provided
exculpatory testimony. After he was assigned counsel, defendant
submitted a certification stating he had advised plea counsel
there was an individual who "would have provided an alibi."
Defendant did not elaborate upon how such individual could have
aided him in his defense.
PCR counsel submitted a certification stating defendant
gave him the name of an alleged alibi witness. Counsel
contacted the witness, who informed counsel she had "alibi
information." She mentioned she had not been contacted when the
underlying case was still pending. The witness advised counsel
she would meet him in his office to disclose the information she
possessed, but she never showed up. Counsel reached out to the
witness but she never responded to his requests to contact him.
While the matter was pending before the PCR court,
defendant never produced a certification or affidavit from the
witness setting forth the exonerating information she possessed.
On July 25, 2016, the PCR court entered an order denying
defendant's petition for post-conviction relief.
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On appeal, defendant presents the following argument for
our consideration.
POINT I – DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-
CONVICTION RELIEF.
A. Counsel Was Ineffective For
Failing To Conduct A Minimally Adequate
Pretrial Investigation Resulting In The
Failure To Call An Alibi Witness To
Assist In His Defense.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment to the
United States Constitution was formulated in Strickland v.
Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674(1984), and adopted by our Supreme Court in State v. Fritz, l05
N.J. 42 (l987). In order to prevail on a claim of ineffective
assistance of counsel, defendant must meet a two-prong test.
The first prong requires defendant to prove counsel's
performance was deficient and he or she made errors so egregious
that counsel was not functioning effectively as guaranteed by
the Sixth Amendment. Strickland, supra, 466 U.S. at 687, 694,
l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
The second prong requires defendant to prove the defect in
performance prejudiced defendant's rights to a fair trial and
there exists a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
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been different." Ibid. If a defendant has pled guilty, the
second prong requires defendant to show "'there is a reasonable
probability that, but for counsel's errors, [the defendant]
would not have pled guilty but would have insisted on going to
trial.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
We conclude our decision in State v. Cummings, 321 N.J.
Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199(1999) is dispositive of defendant's argument. In Cummings, we
rejected the defendant's claim his counsel had been ineffective
for failing to pursue an alibi defense, because the defendant's
allegation was unsupported by any corroborating affidavits or
certifications from any witness attesting to the alibi.
Here, for the same reason, we reject defendant's claim.
Defendant has not even identified what the alibi defense is, let
alone submitted the appropriate verification of its existence.
Defendant's bald assertion there is an alibi is insufficient.
Accordingly, he failed to make a prima facie showing of
ineffectiveness of trial counsel sufficient to satisfy the
Strickland-Fritz standard.
Affirmed.
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