NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2299-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDRE GREEN, a/k/a DRE ANDRAE GREEN 13,
Defendant-Appellant. _______________________
Submitted December 18, 2024 – Decided March 27, 2025
Before Judges Marczyk and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-06-0488.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Leandra L. Cilindrello, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Andre Green appeals from the January 12, 2023 Law Division
order denying his application for post-conviction relief (PCR) without an
evidentiary hearing. Because defendant failed to make a prima facie showing
of ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668, 687 (1984), we affirm.
I.
After defendant's first trial resulted in a mistrial due to a hung jury, a
second jury convicted him in 2018 of the first-degree murder, N.J.S.A. 2C:11-
3(a), of Antoine Garris, and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a), and found him not guilty of third-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The trial court merged
the possession of a weapon conviction with the murder conviction, and
sentenced defendant to sixty years' imprisonment and an eighty-five percent
term of parole ineligibility subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. We affirmed defendant's convictions on direct appeal. See
State v. Green, No. A-5875-17 (App. Div. Jan. 4, 2021) (slip op. at 27).
The facts and procedural history underlying defendant's convictions are
detailed in our decision on direct appeal. See id. at 3-8. Although defendant's
PCR petition before the trial court raised several issues, he confines his appeal
A-2299-22 2 to the singular claim that his trial counsel was prejudicially deficient for failing
to effectively investigate and present a defense of third-party guilt. In
addressing this argument, we synthesize and incorporate the relevant facts from
our prior opinion, together with the record of the PCR proceedings, to provide
the necessary context for our decision.
A.
Numerous witnesses testified at trial regarding the shooting and the events
preceding it, contributing to, as we previously described, the "abundance" of
evidence "overwhelmingly show[ing] defendant murdered Garris." Id. at 15.
Testimony revealed that on September 15, 2014, defendant fought "with his wife
in a car parked outside of a bar in Paterson." Id. at 3. Defendant exited the car
and continued to shout at his wife, as Garris, hearing the commotion, came
outside and advised defendant to leave. After a fist fight ensued between the
two, defendant "left the scene . . . but returned fifteen minutes later armed with
a gun" and entered the bar, where an eyewitness claimed defendant shot and
killed Garris before fleeing on foot. Ibid. "On October 8, 2014, federal
[M]arshals located and arrested defendant in Rochester, New York without
incident," ibid., after which defendant made incriminating statements and
admitted to the shooting.
A-2299-22 3 The Deputy U.S. Marshal testified regarding the admissions:
[Defendant] stated he did not regret what he did. He stated that he couldn't believe he killed somebody, and that he didn't mean to. He stated that he believed the victim deserved what happened and the victim screwed his life up.
He gave a story that he had a dispute with his wife and didn't appreciate what the other guy was saying to him. He said he shot him because of that and he must live with what he did. He stated he did not want to do [twenty-five] years in jail, but he accepted it as reality. That he would plead a manslaughter but not murder.
The victim's sister, Shavon Randolph, and cousin, Brandy Taylor, testified
about statements defendant made to them in phone calls and text messages after
the shooting. In one phone conversation with defendant, Randolph accused
defendant of killing her brother, and defendant admitted to the murder and
threatened her to stop her harassment or she would "end up like her brother."
Following that call, defendant texted Randolph, "[n]ow you see why he's dead."
Taylor testified that defendant called and threatened both Randolph and Taylor
to "stop contacting [his] wife, and stop calling [his] phone, or [they're] going to
get the same thing as [the victim]."
The State's witness, Jelessa Dennison, recalled that prior to the shooting
she was smoking a cigarette outside of the bar when she observed "[defendant]
and his baby mom . . . arguing and fighting in the car." She said "[defendant]
A-2299-22 4 was beating on his baby mom while the kids w[ere] right in the back," before he
"got out of the car," and continued his angry "ramping and raving." Dennison
recalled Garris responded, telling defendant to leave to avoid a police response.
She described their fist fight "in front of the [bar]," and testified that during the
fight, she heard defendant tell the victim "I'm going to kill you."
Dennison did not previously mention this threat in her statement to police
or at defendant's first trial. On cross-examination, as we noted in the direct
appeal, defendant's attorney "vigorously" confronted Dennison about
inconsistencies in Dennison's prior statements and her identification of
defendant. Id. at 7.
The State presented surveillance camera footage, and Dennison identified
both herself in front of the bar and defendant entering the bar. Dennison also
testified that she left shortly after the fight ensued which the video corroborated.
Another witness, Wayne Clyburn, testified, explaining that just prior to
the shooting, he witnessed a couple fighting in a car, "just going back and forth,
smacking each other." At defendant's first trial, Clyburn testified he could not
identify the car's occupants, but at the second trial, he stated that he recognized
defendant as he exited his vehicle. We previously noted that trial counsel cross-
A-2299-22 5 examined "extensively" Clyburn's identification of defendant and his ability to
recall what happened. Id. at 8.
Clyburn and Dennison each testified that after they left the bar together,
they drove down the street to a nearby car wash. Approximately ten to fifteen
minutes later, they heard gunshots from the bar and ran towards the sound of the
shots. As Clyburn approached, he observed a man in a white shirt , later
identified as defendant, leaving the bar and another man, later identified as
Davon Bunch, running after him. Clyburn "joined the pursuit," until defendant
evaded them by entering the back of a white car parked on the next block, which
then drove off. Clyburn recalled speaking with police at the scene, but never
testified he recognized defendant. At trial, he testified that although he only
saw the man from the back, he recognized him as defendant.
The State called Bunch, who testified that he was in the bar with the victim
when defendant entered, began arguing with the victim, and shot the victim
several times. Bunch identified Clyburn and himself on a street surveillance
video that depicted them running behind the man he identified as defendant.
A state police detective testified, with "practical certainty," that the seven
shell casings found in the bar "were all discharged from the same firearm,"
which was never recovered.
A-2299-22 6 After the jury returned its guilty verdict, at the sentencing hearing, the
court merged the gun conviction into the murder conviction and imposed a
sentence of sixty years, with fifty-one years' NERA parole ineligibility.
B.
On January 4, 2021, we affirmed defendant's conviction. Although finding
no substantive error, we deemed any arguable error harmless, as the State's proof
was "overwhelming" leaving "no capacity for an unjust result." Id. at 22. We
further concluded the trial court's sentencing decision was "reasonable" and
could not "be considered an abuse of discretion resulting in an excessive
sentence." Id. at 27.
C.
In July 2021, defendant timely filed a petition for PCR, accompanied by
a certification in support of his petition. He sought relief under Rule 3:22-2(a),
asserting ineffective assistance of both trial and appellate counsel. Defendant
raised a list of alleged errors by trial counsel, including claims that counsel
failed to (1) "advise defendant of his sentence exposure"; (2) "prepare and put
up a significant defense, which left defendant stranded and subject to the
prosecutor's tactics"; (3) "confront" three witnesses who "materially changed
A-2299-22 7 their . . . testimony" at the second trial from their prior trial testimony; and (4)
"investigate and present a third party guilt defense."
On the issue of the alleged third-party guilt defense, defendant stated
generally that "[b]y failing to investigate and present a third-party guilt defense,
[his] attorney denied [him] []effective legal representation and [his] right to a
complete defense." He claimed without any further specificity that he "asked
[his] attorney [to] . . . investigate this defense." Defendant alleged that
counsel's deficiency deprived him of a third-party guilt jury instruction.
Defendant further certified that he was entitled to PCR because his
appellate counsel on direct appeal "failed to raise several meritorious claims of
trial court error . . . including the trial court's denial of [defendant's] Wade1
motion as to . . . Dennison." He generally claimed his "appellate attorney raised
only two points, not including sentencing. . . . [and] d[id] not believe that she
did a careful and thorough review of the case."
At the PCR hearing in September 2022, PCR counsel argued the issues
raised in defendant's petition, adding claims that trial counsel failed to request
that the trial court voir dire jurors who allegedly sat near a witness who
1 United States v. Wade, 388 U.S. 218 (1967).
A-2299-22 8 represented he never communicated with any of the jurors and that counsel
failed to request a voice identification charge regarding Taylor and Randolph's
phone conversation.
The State argued as to all claims that defendant did not establish a prima
facie case for ineffective assistance of counsel to warrant an evidentiary hearing
because, "[e]ven assuming that the tactical decisions made by counsel during
the course of the trial that led to the conviction were deficient, they in no way
whatsoever had any outcome on the jury's verdict." Regarding defendant's
argument that trial counsel failed to pursue a third-party guilt defense, the State
emphasized that defendant raised a defense at trial of mistaken identity, and
"[b]y definition[,] if this defendant did not do it, then someone else must have."
On January 12, 2023, the PCR court denied defendant's PCR petition and
request for an evidentiary hearing. In its thorough oral decision, the PCR court
engaged in a probing Strickland analysis and addressed and rejected in detail
each issue raised by defendant's PCR counsel. The court cited our direct appeal
decision concurring that the State's evidence "overwhelmingly" showed
defendant's guilt, belying any argument of prejudice under Strickland.
Specifically, the court found: (1) trial counsel "extensively cross-
examined Clyburn's identification of defendant[] and his ability to remember
A-2299-22 9 what happened"; (2) trial counsel "extensively cross-examined . . . Dennison"
regarding her inconsistent testimony about defendant's threats; (3) Taylor's prior
testimony was not inconsistent with her testimony at the second trial; (4) there
was "no evidence . . . of any inappropriate contact between . . . Bunch and the
jurors" and "trial counsel's action in not requesting a voir dire of the jurors" was
a "reasonable tactical decision" made to avoid "unnecessary attention to an issue
counsel may have wanted to avoid"; and (5) trial counsel was not ineffective for
failing to request a voice identification charge regarding Taylor and Randolph's
phone conversation noting the absence of any model jury charge on voice
identification.
The court concluded defendant failed to overcome the strong presumption
that trial counsel's conduct fell "within the wide range of reasonable professional
assistance and any omitted questions were attributable to sound trial strategy ."
Specifically concerning defendant's claims that trial counsel was
ineffective for failing to pursue a third-party guilt defense, the PCR court noted:
[T]he evidence presented by the State against defendant at trial consisted of a video of [defendant] running from the shooting scene being chased by an eyewitness to the murder, . . . Bunch, two witnesses identifying [d]efendant as the actor involved in the altercation outside of Moya's Bar before the shooting, [N.J.R.E.]
A-2299-22 10 404(b) evidence[,] and post-murder inculpatory statements made by [defendant] to [the] U.S. Marshal[] and the victim's sister.
The PCR court found "the proofs presented by the State were strong," and "trial
counsel tried very hard to establish reasonable doubt based upon what he
attempted to show were flaws in the identifications and [through] vigorous
cross-examination[s] of several of the State's witnesses." Accordingly, it
determined "given the strong proofs, the failure to develop a third-party defense
by trial counsel did not constitute ineffective assistance of counsel."
The court ultimately denied the petition entirely, concluding "trial
counsel's performance was not deficient in any fashion, and even if counsel['s]
performance [was] deficient in some aspect, any deficiency would have had no
effect on the outcome or the fairness of the trial, given the overwhelming proofs
presented by the State." The PCR court denied defendant's request for an
evidentiary hearing, finding there were no facts outside the trial record in
dispute, and that defendant failed to establish a prima facie showing of
ineffective assistance of counsel.
A-2299-22 11 II.
On appeal, defendant argues:
POINT I
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO INVESTIGATE A THIRD-PARTY GUILT DEFENSE.
Defendant claims the PCR court erroneously denied his PCR petition
without an evidentiary hearing. Because he confines his appeal to his counsel's
alleged ineffective assistance in failing to present a third-party guilt defense, we
too confine our decision to that issue.
III.
We review a PCR court's legal conclusions de novo. See State v. Harris,
181 N.J. 391, 415 (2004). Likewise, without an evidentiary hearing, this court
"may exercise de novo review over the factual inferences the trial court has
drawn from the documentary record." State v. Lawrence, 463 N.J. Super. 518,
522 (App. Div. 2020) (quoting State v. O'Donnell, 435 N.J. Super. 351, 373
(App. Div. 2014)).
A-2299-22 12 A.
We first recognize the well-settled controlling legal principles. New
Jersey's PCR petition serves as an "analogue to the federal writ of habeas
corpus." State v. Preciose, 129 N.J. 451, 459 (1992). "[N]either a substitute for
direct appeal" for those criminally convicted nor a vehicle to re-litigate matters
already resolved on their merits, PCR proceedings can offer the best opportunity
for ineffective assistance claims to be reviewed. Id. at 459-60. When
petitioning for PCR, a defendant must establish, by a preponderance of the
credible evidence, entitlement to the requested relief. Id. at 459. To sustain this
burden, defendants must articulate specific facts, "which, if believed, would
provide the court with an adequate basis on which to rest its decision. " State v.
Mitchell, 126 N.J. 565, 579 (1992).
To establish an ineffective assistance of counsel claim, a defendant must
demonstrate: (1) "counsel's performance was deficient"; and (2) "the deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687; see also State
v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged analysis
in New Jersey). "That is, the defendant must establish, first, that 'counsel's
representation fell below an objective standard of reasonableness ' and, second,
that 'there is a reasonable probability that, but for counsel's unprofessional
A-2299-22 13 errors, the result of the proceeding would have been different.'" State v. Alvarez,
473 N.J. Super. 448, 455 (App. Div. 2022) (quoting Strickland, 466 U.S. at 688).
Importantly, this court's review of counsel's performance under the first
Strickland requirement "must be highly deferential," Strickland, 466 U.S. at 689,
and we "indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance," requiring defendants to
"overcome the presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'" Ibid. (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)).
Under Strickland's second requirement, "[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if . . . [it] had no effect on the judgment." Id. at 691. Errors
with "some conceivable effect on the outcome" fall short of warranting relief.
Id. at 693.
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing as defendants "must allege specific facts and evidence
supporting [their] allegations." State v. Porter, 216 N.J. 343, 355 (2013).
"[B]ald assertions" will not suffice. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). Rule 3:22-10(c) mandates that factual claims "must" be
A-2299-22 14 made under oath, "by an affidavit or certification pursuant to Rule 1:4-4 and
based upon personal knowledge of the declarant before the court may grant an
evidentiary hearing." Further, "[i]f the court perceives that holding an
evidentiary hearing will not aid the court's analysis of whether the defendant is
entitled to [PCR], . . . then an evidentiary hearing need not be granted." State
v. Marshall, 148 N.J. 89, 158 (1997).
Against this backdrop we conclude defendant's claim lacks merit and is
insufficient to warrant an evidentiary hearing. Defendant's showing regarding
his claim that his counsel failed to investigate and present a third-party guilt
defense rests upon his certification alleging only:
10. By failing to investigate and present a third-party guilt defense, my attorney denied me effective legal representation and my right to a complete defense. I had asked my attorney that he should investigate this defense.
11. Further, by failing to present this defense, the jury was not instructed by the trial court on third party guilt which compounded the prejudice.
Defendant does not certify to any facts that would have supported a third-
party guilt defense or made such a defense meritorious. See Marder v. Realty
Constr. Co., 84 N.J. Super. 313, 318-19 (App. Div. 1964) (holding "[n]ormally,
A-2299-22 15 [the] failure to plead the details of what the meritorious defense is would be fatal
to an application for reopening of a judgment"). This lack of specificity was
"fatal" to defendant's claim, particularly given the volume and magnitude of the
State's evidence of his guilt.
We need not again list at length the evidence, as it is detailed earlier in
this decision, in our direct appeal decision, and again aptly by the PCR court.
That evidence—including an eyewitness account of defendant committing the
murder, video and eyewitness testimony regarding the altercation between
defendant and the victim prior to the shooting, as well as to defendant's flight
from the shooting while being pursued by testifying witnesses, and testimony
from law enforcement and other witnesses regarding defendant's admission to
shooting the victim—is virtually insurmountable when challenged by
unsupported claims of an unspecific defense that an unspecified third party was
the culprit.
We concur with the PCR court's well-reasoned decision denying an
evidentiary hearing, finding no deficiency by trial counsel, and no showing of
prejudice.
A-2299-22 16 C.
Defendant raised several other issues in his PCR petition that are not
addressed in his brief. We deem those issues waived. 2 See Pressler & Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019) ("[A]n issue not briefed is
deemed waived."); State v. Aloi, 458 N.J. Super. 234, 243 n.6 (App. Div. 2019)
(noting an issue not briefed on appeal is deemed waived (citing Jefferson Loan
Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008))). For
completeness, however, we note only that we have reviewed those claims in
light of the trial and PCR records and deem them without merit to warrant further
discussion. See R. 2:11-3(e)(2). For the reasons set forth in the PCR court's
thoughtful decision, we are not persuaded that defendant demonstrated "a
reasonable probability that, but for counsel's . . . errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694.
Affirmed.
2 We note defendant's notice of appeal also identifies a challenge to the excessiveness of the sentence, a claim barred as already raised on direct appeal, R. 3:22-5, and otherwise not briefed or properly raised here. A-2299-22 17