NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3715-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVON COOPER,
Defendant-Appellant. _______________________
Submitted December 3, 2024 – Decided December 16, 2024
Before Judges Firko and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 17-04-0267.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Davon Cooper appeals from a June 22, 2023 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant contends his trial and appellate counsel rendered ineffective
assistance. Judge John A. Young, Jr. thoroughly considered defendant's
contentions and rendered a comprehensive written opinion, with which we
substantially agree. We affirm.
Defendant and co-defendant Aaron Enix were charged with murder,
conspiracy to commit murder, and two counts of possession of a weapon for an
unlawful purpose. The victim was shot sixteen times and identified defendant
and Enix as the suspects. Defendant and Enix were observed in surveillance
footage wearing distinctive burgundy colored clothing and shooting the victim
before running from the scene towards an alley near 70 Clark Street in Jersey
City. Defendant and Enix were apprehended two blocks away.
The police recovered two firearms on the porch at 70 Clark Street that
were used in the shooting. Fifteen days later, the victim died from injuries
sustained from the shooting. Surveillance footage was obtained from nearby
locations, which captured figures fleeing toward an alley near 70 Clark Street
and discarding something as they ran. A jury found defendant not guilty on the
A-3715-22 2 murder and conspiracy to commit murder charges, but guilty of the weapons
charges. Enix was found guilty of murder and the weapons charges.
Judge Young sentenced defendant to sixteen years' imprisonment subject
to an eight-year period of parole ineligibility under the Graves Act, N.J.S.A.
2C:43-6(c). The sentence was to run consecutively to a six-year prison sentence
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, in an unrelated
indictment. We affirmed the convictions but remanded for re-sentencing due to
the improper merger of the two weapon counts. State v. Cooper, No. A-2695-
18 (App. Div. Apr. 7, 2021). Our Supreme Court denied defendant's petition for
certification. State v. Cooper, 247 N.J. 399 (2021).
On February 3, 2022, Judge Young re-sentenced defendant to an extended
fourteen-year term of imprisonment for second-degree possession of a handgun
for an unlawful purpose count, eligible for release after serving seven years, and
re-sentenced defendant to a seven-year term of imprisonment for the second-
degree unlawful possession of a handgun without a license count. Both
sentences were to run concurrently.
Defendant timely filed a petition for PCR claiming his trial counsel was
ineffective for failing to move: (1) to dismiss the indictment; (2) for a judgment
A-3715-22 3 of acquittal; or (3) for a new trial. Defendant also claimed his appellate counsel
was ineffective for not raising these arguments on direct appeal.
Defendant contended his trial counsel was ineffective for not moving to
dismiss the indictment and was prejudiced by the admission of double hearsay
at trial. Defendant argued the grand jury witness testimony elicited from
Detective Sherika Salmon was improperly used at trial to prove the charges in
the indictment, warranting an evidentiary hearing.
Defendant also asserted his trial counsel was ineffective for not moving
for a judgment of acquittal or a new trial because there was insufficient evidence
placing defendant at the scene of the shooting and to support the jury finding
defendant was guilty of the weapons offense. Defendant claimed his appellate
counsel was ineffective for not likewise arguing that his trial counsel did not
make the same motions.
The judge found defendant's PCR petition was barred under Rules 3:10-
2(c) and 3:22-4 because arguments about trial counsel's failure to move to
dismiss the indictment should have been raised on direct appeal. In his written
opinion, the judge found:
[Defendant] could have asserted on appeal that trial counsel was ineffective for failing to file a motion to dismiss the indictment, however, failed to do so. While [defendant] alleges a basis of fundamental injustice,
A-3715-22 4 devoid of specificity, this [c]ourt does not discern a fundamental injustice to disturb the [i]ndictment, for which [defendant] was tried and convicted. Nor would denial of such relief be contrary to our Federal or State Constitutions. [Defendant] and his trial counsel have known the basis of the [i]ndictment . . . from the inception of this case. A motion to dismiss an [i]ndictment should have been made prior to trial, when such a motion is to be filed pursuant to our court rules, and if such argument had merit, should have been raised on appeal. . . . [Defendant] has failed to present any justifiable reason why such issues were not presented on appeal.
Notwithstanding the procedural bar, the judge addressed the substantive
merits of defendant's claim. The judge determined that an indictment may be
based on hearsay and evidence not otherwise admissible at trial. The judge
highlighted that "the State merely elicited from [the grand jury witness] the
cause of death provided in the victim's death certificate."
In addressing defendant's claim that trial counsel was ineffective for not
moving for acquittal or a new trial, the judge reasoned:
[T]he jury did not find [defendant] guilty of murder or conspiracy to commit murder. The jury found [him] guilty of the weapons charges. . . . The jury observed surveillance footage of the shooting which showed [defendant] and . . . Enix shooting the victim then running from the scene to a nearby area where they discarded their weapons. The jury saw and considered the weapons as evidence. The jury also saw [defendant]'s clothing at the time of the shooting and his subsequent arrest. The jury heard the victim's
A-3715-22 5 statement identifying [defendant] and . . . Enix as the shooters. The jury determined the credibility of the various witnesses presented by the State. Sufficient evidence exists which supports the jury finding [defendant] guilty of the weapons offenses. As the Appellate Division noted, "it is entirely plausible to infer from this evidence that [defendant] possessed one of the handguns recovered by the police near the crime scene." [Defendant]'s conviction was also affirmed by our Appellate Division. As the Appellate Division stated, "[a]fter reviewing the record developed before the trial court, we discern no legal basis to disturb the jury's verdict and affirm."
The judge explained that defendant failed to "demonstrate the deficiency of trial
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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-3715-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVON COOPER,
Defendant-Appellant. _______________________
Submitted December 3, 2024 – Decided December 16, 2024
Before Judges Firko and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 17-04-0267.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Davon Cooper appeals from a June 22, 2023 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant contends his trial and appellate counsel rendered ineffective
assistance. Judge John A. Young, Jr. thoroughly considered defendant's
contentions and rendered a comprehensive written opinion, with which we
substantially agree. We affirm.
Defendant and co-defendant Aaron Enix were charged with murder,
conspiracy to commit murder, and two counts of possession of a weapon for an
unlawful purpose. The victim was shot sixteen times and identified defendant
and Enix as the suspects. Defendant and Enix were observed in surveillance
footage wearing distinctive burgundy colored clothing and shooting the victim
before running from the scene towards an alley near 70 Clark Street in Jersey
City. Defendant and Enix were apprehended two blocks away.
The police recovered two firearms on the porch at 70 Clark Street that
were used in the shooting. Fifteen days later, the victim died from injuries
sustained from the shooting. Surveillance footage was obtained from nearby
locations, which captured figures fleeing toward an alley near 70 Clark Street
and discarding something as they ran. A jury found defendant not guilty on the
A-3715-22 2 murder and conspiracy to commit murder charges, but guilty of the weapons
charges. Enix was found guilty of murder and the weapons charges.
Judge Young sentenced defendant to sixteen years' imprisonment subject
to an eight-year period of parole ineligibility under the Graves Act, N.J.S.A.
2C:43-6(c). The sentence was to run consecutively to a six-year prison sentence
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, in an unrelated
indictment. We affirmed the convictions but remanded for re-sentencing due to
the improper merger of the two weapon counts. State v. Cooper, No. A-2695-
18 (App. Div. Apr. 7, 2021). Our Supreme Court denied defendant's petition for
certification. State v. Cooper, 247 N.J. 399 (2021).
On February 3, 2022, Judge Young re-sentenced defendant to an extended
fourteen-year term of imprisonment for second-degree possession of a handgun
for an unlawful purpose count, eligible for release after serving seven years, and
re-sentenced defendant to a seven-year term of imprisonment for the second-
degree unlawful possession of a handgun without a license count. Both
sentences were to run concurrently.
Defendant timely filed a petition for PCR claiming his trial counsel was
ineffective for failing to move: (1) to dismiss the indictment; (2) for a judgment
A-3715-22 3 of acquittal; or (3) for a new trial. Defendant also claimed his appellate counsel
was ineffective for not raising these arguments on direct appeal.
Defendant contended his trial counsel was ineffective for not moving to
dismiss the indictment and was prejudiced by the admission of double hearsay
at trial. Defendant argued the grand jury witness testimony elicited from
Detective Sherika Salmon was improperly used at trial to prove the charges in
the indictment, warranting an evidentiary hearing.
Defendant also asserted his trial counsel was ineffective for not moving
for a judgment of acquittal or a new trial because there was insufficient evidence
placing defendant at the scene of the shooting and to support the jury finding
defendant was guilty of the weapons offense. Defendant claimed his appellate
counsel was ineffective for not likewise arguing that his trial counsel did not
make the same motions.
The judge found defendant's PCR petition was barred under Rules 3:10-
2(c) and 3:22-4 because arguments about trial counsel's failure to move to
dismiss the indictment should have been raised on direct appeal. In his written
opinion, the judge found:
[Defendant] could have asserted on appeal that trial counsel was ineffective for failing to file a motion to dismiss the indictment, however, failed to do so. While [defendant] alleges a basis of fundamental injustice,
A-3715-22 4 devoid of specificity, this [c]ourt does not discern a fundamental injustice to disturb the [i]ndictment, for which [defendant] was tried and convicted. Nor would denial of such relief be contrary to our Federal or State Constitutions. [Defendant] and his trial counsel have known the basis of the [i]ndictment . . . from the inception of this case. A motion to dismiss an [i]ndictment should have been made prior to trial, when such a motion is to be filed pursuant to our court rules, and if such argument had merit, should have been raised on appeal. . . . [Defendant] has failed to present any justifiable reason why such issues were not presented on appeal.
Notwithstanding the procedural bar, the judge addressed the substantive
merits of defendant's claim. The judge determined that an indictment may be
based on hearsay and evidence not otherwise admissible at trial. The judge
highlighted that "the State merely elicited from [the grand jury witness] the
cause of death provided in the victim's death certificate."
In addressing defendant's claim that trial counsel was ineffective for not
moving for acquittal or a new trial, the judge reasoned:
[T]he jury did not find [defendant] guilty of murder or conspiracy to commit murder. The jury found [him] guilty of the weapons charges. . . . The jury observed surveillance footage of the shooting which showed [defendant] and . . . Enix shooting the victim then running from the scene to a nearby area where they discarded their weapons. The jury saw and considered the weapons as evidence. The jury also saw [defendant]'s clothing at the time of the shooting and his subsequent arrest. The jury heard the victim's
A-3715-22 5 statement identifying [defendant] and . . . Enix as the shooters. The jury determined the credibility of the various witnesses presented by the State. Sufficient evidence exists which supports the jury finding [defendant] guilty of the weapons offenses. As the Appellate Division noted, "it is entirely plausible to infer from this evidence that [defendant] possessed one of the handguns recovered by the police near the crime scene." [Defendant]'s conviction was also affirmed by our Appellate Division. As the Appellate Division stated, "[a]fter reviewing the record developed before the trial court, we discern no legal basis to disturb the jury's verdict and affirm."
The judge explained that defendant failed to "demonstrate the deficiency of trial
counsel," and therefore, appellate counsel was not ineffective. The judge
emphasized that defendant's arguments "would have been frivolous on appeal."
The judge concluded defendant did not satisfy the burden under the first and
second prongs of Strickland,1 as adopted by our Supreme Court in Fritz.2 A
memorializing order was entered.
Defendant appeals, reprising his arguments about the ineffectiveness of
trial and appellate counsel in the following points:
POINT I
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR
1 Strickland v. Washington, 466 U.S. 668, 694-95 (1984). 2 State v. Fritz, 105 N.J. 42, 51 (1987). A-3715-22 6 COUNSEL'S FAILURE TO MOVE TO DISMISS THE INDICTMENT AND MOVE FOR A JUDGMENT OF ACQUITTAL OR NEW TRIAL.
(A) Applicable Law.
(B) Counsel Was Ineffective For Not Filing A Motion To Dismiss The Indictment.
(C) Counsel Was Ineffective For Not Moving For A Judgment Of Acquittal Or New Trial.
POINT II
APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT APPEALING TRIAL COUNSEL'S FAILURE TO MOVE TO DISMISS THE INDICTMENT, MOVE FOR A JUDGMENT OF ACQUITTAL AND MOVE FOR A NEW TRIAL.
POINT III
DEFENDANT'S PETITION FOR [PCR] SHOULD NOT BE BARRED BECAUSE DEFENDANT COULD NOT HAVE BROUGHT HIS CLAIM OF FAILURE TO DISMISS THE INDICTMENT IN A PRIOR PROCEEDING AND THE INTERESTS OF JUSTICE REQUIRE HIS CLAIM BE HEARD.
Our review of the record convinces us Judge Young conscientiously
considered all of defendant's claims and appropriately denied him relief. We
agree defendant failed to establish a prima facie case of trial or appellate
counsel's ineffectiveness based upon our de novo review. State v. Nash, 212
A-3715-22 7 N.J. 518, 540-41 (2013). We are unpersuaded that a motion to dismiss the
indictment would have been granted, as the judge duly noted. Detective Salmon
testified before the grand jury about the victim's cause of death as stated on the
death certificate and did not give expert opinion testimony as to the cause of
death. At the grand jury proceeding, the following colloquy was exchanged
between the prosecutor and the witness, Detective Salmon:
[Prosecutor]: An ambulance responded to the scene and transported him to the Jersey City Medical Center, correct?
[Witness]: Correct.
[Prosecutor]: And he later passed away as a result of his—the wounds that he suffered, correct?
[Prosecutor]: And he passed away on the 12th of—
[Witness]: December.
[Prosecutor]: —December, correct?
[Prosecutor]: I'm going to show you what's marked as [g]rand [j]ury exhibit 2 for identification purposes. Detective, this is a certificate of death with the—from . . . the State of New Jersey; is that correct?
A-3715-22 8 [Prosecutor]: It states [the victim's] date of death was 12/12/2016, correct?
[Prosecutor]: Does it state a manner of death?
[Prosecutor]: And what is the manner of death?
[Witness]: Homicide.
[Prosecutor]: And what is the cause of death?
[Witness]: Multiple gunshot wounds.
The judge correctly ruled that an indictment may be based on hearsay and
the evidence that is not typically admissible at a trial, citing State v. Tringali,
451 N.J. Super. 18, 26 (App. Div. 2017) (stating that in grand jury proceedings,
hearsay is admissible). Here, the record establishes no issues of material fact
regarding the purpose of Detective Salmon's testimony—to simply recite the
manner and cause of the victim's death as reflected in the death certificate. No
expert testimony was elicited. As stated by the judge, Detective Salmon did not
render an opinion as to the victim's cause of death, and a dismissal of the
indictment was not warranted. Therefore, the judge found that defendant failed
to establish a prima facie case of trial counsel's ineffectiveness under the first
A-3715-22 9 Strickland prong. We agree based upon our de novo review. Defendant also
failed to establish prejudice under the second Strickland prong.
We also conclude that the judge properly determined that neither a motion
for acquittal nor a new trial had merit given the overwhelming evidence
presented against defendant. At trial, the jury considered the testimony of
sixteen witnesses presented by the State. The jury also observed surveillance
footage of the shooting—which showed defendant and Enix shooting the victim
and running from the scene to a nearby area where they discarded their
weapons—and the jury considered the weapons as evidence.
In addition, the jury had defendant's clothing at the time of the shooting
and his arrest to examine, and the victim's statement identifying defendant and
Enix as the shooters. Moreover, defendant was found not guilty of the murder
or conspiracy to commit murder charges. We stated in our prior opinion that "it
is entirely plausible to infer from this evidence that [defendant] possessed one
of the handguns recovered by the police near the crime scene." Cooper, slip op.
at 12.
The judge aptly found defendant failed to establish a prima facie case that
trial counsel was ineffective for not filing a motion for acquittal or new trial
under the first Strickland prong. The record supports that determination. We
A-3715-22 10 are also satisfied that defendant failed to show prejudice under the second
Strickland prong.
We also agree with the judge that appellate counsel was not ineffective
for failing to make frivolous or futile arguments on direct appeal. The right of
effective assistance of counsel includes not only trial counsel, but also appellate
counsel on direct appeal. State v. O'Neil, 219 N.J. 598, 610 (2014). To obtain
a new trial based on ineffective assistance of appellate counsel, a defendant must
establish a "reasonable probability that, but for the errors of . . . appellate
counsel, the outcome would have been different." State v. Echols, 199 N.J. 344,
361 (2009).
Appellate counsel will not be found ineffective if appellate counsel's
failure to appeal the issue was not due to a "clearly improper" error. State v.
Harris, 181 N.J. 391, 499 (2004) (citation omitted) (quoting State v. Williams,
113 N.J. 393, 452 (1988)). Consequently, appellate counsel is not required to
raise every possible issue and need only raise issues that have a reasonable
possibility of success. State v. Gaither, 396 N.J. Super 508, 515-16 (App. Div.
2007).
Here, the judge correctly found that defendant's appellate counsel was not
ineffective in light of the evidence against defendant, the lack of proof showing
A-3715-22 11 trial counsel was ineffective, and the meritless argument about the purported
hearsay before the grand jury. We agree that any efforts by appellate counsel to
argue these issues would have been unsuccessful.
Defendant failed to establish that the performance of his trial and appellate
counsel was substandard, or but for any of the alleged errors, the result would
have been different. See Strickland, 466 U.S. at 687-88. Moreover, an
evidentiary hearing is necessary only if a petitioner presents sufficient facts to
make out a prima facie claim of ineffective assistance of counsel. State v.
Preciose, 129 N.J. 451, 462-63 (1992); R. 3:22-10(b).
The judge correctly determined an evidentiary hearing was unwarranted.
Accordingly, we affirm substantially for the reasons expressed in Judge Young's
opinion of June 22, 2023.
Affirmed.
A-3715-22 12