NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3317-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK S. LEONARD, a/k/a D-HURT, LEONARD DERRICK, QUADIR BUSH, DEE HURT, DERRICK LEOMARD, DERRICK LEORNARD, and DERRICK WILLIAMS,
Defendant-Appellant. _____________________________
Submitted September 16, 2025 – Decided September 30, 2025
Before Judges Susswein and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-08-2522.
Jennifer N. Sellitti, Public Defender, attorney for appellant (James D. O'Kelly, Designated Counsel, on the brief). Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Derrick Leonard appeals from the May 15, 2024 Law Division
order denying his petition for post-conviction relief (PCR). Defendant contends
the PCR judge erred by not granting an evidentiary hearing based on a prima
facie showing that both his trial and appellate counsel rendered ineffective
assistance with respect to a pretrial Wade/Henderson 1 motion to suppress
eyewitness identification testimony. In May 2019, defendant pled guilty to first -
degree robbery pursuant to a favorable plea agreement negotiated by his counsel,
significantly reducing his sentencing exposure. After reviewing the reco rd in
light of the governing legal principles, we affirm, substantially for the reasons
set forth in Judge Arthur J. Batista's thorough and well-reasoned thirty-page
written opinion.
I.
Given the comprehensiveness of Judge Batista's opinion, we need only
briefly summarize the pertinent facts and procedural history. At his plea
1 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). A-3317-23 2 colloquy, defendant admitted that in May 2018, he stole a cellular telephone
from the victim while armed with a handgun. According to the police report,
the victim was home in his apartment when a masked man with a gun forced his
way into the apartment while another man waited outside. The masked man,
defendant, demanded money. Defendant took the victim's phone and fled. The
victim chased both men and recovered his phone when defendant dropped it.
Police obtained surveillance video from a nearby liquor store that showed
the two men walking to the victim’s apartment and later running from the crime
scene. Still photographs extracted from the video clearly showed the two men's
faces. A police officer recognized defendant as one of the men depicted in the
photos.
The victim was later shown a photo array and positively identified
defendant as the man who had robbed him at gunpoint. The man standing
outside the apartment was identified as codefendant Robert Hughes. Hughes
gave a statement inculpating defendant.
In August 2018, defendant and Hughes were charged by indictment with
first-degree robbery, conspiracy to commit robbery, second-degree burglary,
possession of a firearm for an unlawful purpose, and unlawful possession of a
firearm. Defendant's trial attorney filed a motion to suppress the victim's
A-3317-23 3 identification of defendant, arguing the filler photos in the array were dissimilar
from defendant's photo, rendering the witness identification procedure
impermissibly suggestive. More specifically, counsel argued that the photo of
defendant showed him looking away from the camera with one eye, while the
other photos in the array showed individuals looking at the camera with both
eyes. On February 11, 2019, the trial court denied the suppression motion,
finding the claimed difference between defendant's photo and the other photos
was "subtle at best" and that the difference did not rise to the level of
impermissible suggestiveness.
On May 6, 2019, defendant pled guilty to first-degree robbery in
exchange for the dismissal of other pending charges and a recommended
sentence of thirteen years of imprisonment subject to the No Early Release Act
(“NERA”). On direct appeal, we affirmed defendant's conviction and sentence,
State v. Leonard, No. A-0526-20 (App. Div. Mar. 3, 2023) (slip op. at 2), and
the New Jersey Supreme Court thereafter denied certification. State v. Leonard,
254 N.J. 82 (2023).
On March 20, 2023, defendant filed a petition for PCR and submitted a
self-represented brief on April 16, 2023. On December 30, 2023, appointed
A-3317-23 4 counsel submitted a brief in support of defendant's petition. On May 15, 2024,
the trial court denied defendant's petition in a thirty-page written opinion.
This appeal follows. Defendant raises the following contentions for our
consideration:
POINT I DEFENDANT SATISFIED HIS BURDEN FOR AN EVIDENTIARY HEARING DUE TO TRIAL COUNSEL’S INEFFECTIVE INVESTIGATION AND PRESENTATION OF THE IDENTIFICATION SUPPRESSION MOTION.
POINT II DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO APPELLATE COUNSEL’S FAILURE TO APPEAL THE TRIAL COURT’S DENIAL OF DEFENDANT’S WADE2 MOTION.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. Both the Sixth Amendment of the United States Constitution and
Article 1, paragraph 10 of the State Constitution guarantee the right to effective
assistance of counsel at all stages of criminal proceedings. Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)). A defendant's right to effective assistance of counsel
2 388 U.S. 218 (1967). A-3317-23 5 extends to the plea negotiation process. See Missouri v. Frye, 566 U.S. 134, 140
(2012). "If a plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566
U.S. 156, 168 (2012).
PCR serves the same function as a federal writ of habeas corpus. State v.
Preciose, 129 N.J. 451, 459 (1992). A petitioner must establish, by a
preponderance of the credible evidence, that they are entitled to the requested
relief. Ibid. To meet this burden, the petitioner must allege and 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).
In addressing an ineffective assistance of counsel claim, New Jersey
courts follow the two-part test articulated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687 (1984). See State v. Fritz, 105
N.J. 42, 58 (1987). "First, the defendant must show that counsel's performance
was deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland,
466 U.S. at 687).
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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-3317-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK S. LEONARD, a/k/a D-HURT, LEONARD DERRICK, QUADIR BUSH, DEE HURT, DERRICK LEOMARD, DERRICK LEORNARD, and DERRICK WILLIAMS,
Defendant-Appellant. _____________________________
Submitted September 16, 2025 – Decided September 30, 2025
Before Judges Susswein and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 18-08-2522.
Jennifer N. Sellitti, Public Defender, attorney for appellant (James D. O'Kelly, Designated Counsel, on the brief). Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Derrick Leonard appeals from the May 15, 2024 Law Division
order denying his petition for post-conviction relief (PCR). Defendant contends
the PCR judge erred by not granting an evidentiary hearing based on a prima
facie showing that both his trial and appellate counsel rendered ineffective
assistance with respect to a pretrial Wade/Henderson 1 motion to suppress
eyewitness identification testimony. In May 2019, defendant pled guilty to first -
degree robbery pursuant to a favorable plea agreement negotiated by his counsel,
significantly reducing his sentencing exposure. After reviewing the reco rd in
light of the governing legal principles, we affirm, substantially for the reasons
set forth in Judge Arthur J. Batista's thorough and well-reasoned thirty-page
written opinion.
I.
Given the comprehensiveness of Judge Batista's opinion, we need only
briefly summarize the pertinent facts and procedural history. At his plea
1 United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). A-3317-23 2 colloquy, defendant admitted that in May 2018, he stole a cellular telephone
from the victim while armed with a handgun. According to the police report,
the victim was home in his apartment when a masked man with a gun forced his
way into the apartment while another man waited outside. The masked man,
defendant, demanded money. Defendant took the victim's phone and fled. The
victim chased both men and recovered his phone when defendant dropped it.
Police obtained surveillance video from a nearby liquor store that showed
the two men walking to the victim’s apartment and later running from the crime
scene. Still photographs extracted from the video clearly showed the two men's
faces. A police officer recognized defendant as one of the men depicted in the
photos.
The victim was later shown a photo array and positively identified
defendant as the man who had robbed him at gunpoint. The man standing
outside the apartment was identified as codefendant Robert Hughes. Hughes
gave a statement inculpating defendant.
In August 2018, defendant and Hughes were charged by indictment with
first-degree robbery, conspiracy to commit robbery, second-degree burglary,
possession of a firearm for an unlawful purpose, and unlawful possession of a
firearm. Defendant's trial attorney filed a motion to suppress the victim's
A-3317-23 3 identification of defendant, arguing the filler photos in the array were dissimilar
from defendant's photo, rendering the witness identification procedure
impermissibly suggestive. More specifically, counsel argued that the photo of
defendant showed him looking away from the camera with one eye, while the
other photos in the array showed individuals looking at the camera with both
eyes. On February 11, 2019, the trial court denied the suppression motion,
finding the claimed difference between defendant's photo and the other photos
was "subtle at best" and that the difference did not rise to the level of
impermissible suggestiveness.
On May 6, 2019, defendant pled guilty to first-degree robbery in
exchange for the dismissal of other pending charges and a recommended
sentence of thirteen years of imprisonment subject to the No Early Release Act
(“NERA”). On direct appeal, we affirmed defendant's conviction and sentence,
State v. Leonard, No. A-0526-20 (App. Div. Mar. 3, 2023) (slip op. at 2), and
the New Jersey Supreme Court thereafter denied certification. State v. Leonard,
254 N.J. 82 (2023).
On March 20, 2023, defendant filed a petition for PCR and submitted a
self-represented brief on April 16, 2023. On December 30, 2023, appointed
A-3317-23 4 counsel submitted a brief in support of defendant's petition. On May 15, 2024,
the trial court denied defendant's petition in a thirty-page written opinion.
This appeal follows. Defendant raises the following contentions for our
consideration:
POINT I DEFENDANT SATISFIED HIS BURDEN FOR AN EVIDENTIARY HEARING DUE TO TRIAL COUNSEL’S INEFFECTIVE INVESTIGATION AND PRESENTATION OF THE IDENTIFICATION SUPPRESSION MOTION.
POINT II DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO APPELLATE COUNSEL’S FAILURE TO APPEAL THE TRIAL COURT’S DENIAL OF DEFENDANT’S WADE2 MOTION.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. Both the Sixth Amendment of the United States Constitution and
Article 1, paragraph 10 of the State Constitution guarantee the right to effective
assistance of counsel at all stages of criminal proceedings. Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)). A defendant's right to effective assistance of counsel
2 388 U.S. 218 (1967). A-3317-23 5 extends to the plea negotiation process. See Missouri v. Frye, 566 U.S. 134, 140
(2012). "If a plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566
U.S. 156, 168 (2012).
PCR serves the same function as a federal writ of habeas corpus. State v.
Preciose, 129 N.J. 451, 459 (1992). A petitioner must establish, by a
preponderance of the credible evidence, that they are entitled to the requested
relief. Ibid. To meet this burden, the petitioner must allege and 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).
In addressing an ineffective assistance of counsel claim, New Jersey
courts follow the two-part test articulated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687 (1984). See State v. Fritz, 105
N.J. 42, 58 (1987). "First, the defendant must show that counsel's performance
was deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland,
466 U.S. at 687). "Second, the defendant must have been prejudiced by
counsel's deficient performance." Ibid. (citing Strickland, 466 U.S. at 687).
To meet the first prong of the Strickland/Fritz test, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
A-3317-23 6 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466
U.S. at 687. Reviewing courts indulge in "a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance." Id.
at 689. "A court evaluating a claim of ineffective assistance of counsel must
avoid second-guessing defense counsel's tactical decisions and viewing those
decisions under the 'distorting effects of hindsight.'" State v. Marshall, 148 N.J.
89, 157 (1997) (quoting Strickland, 466 U.S. at 689).
The second Strickland prong is also demanding. It requires the defendant
to show "that counsel's errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Put
differently, counsel's errors must create a "reasonable probability" that the
outcome of the proceedings would have been different if counsel had not made
the errors. Id. at 694. This "is an exacting standard." Gideon, 244 N.J. at 551
(quoting State v. Allegro, 193 N.J. 352, 367 (2008)). "Prejudice is not to be
presumed," but must be affirmatively proved by the defendant. Ibid. (citing
Fritz, 105 N.J. at 52).
In analyzing the prejudice prong, "the overall strength of the evidence
before the factfinder" is important because "a 'verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors than one
A-3317-23 7 with overwhelming record support.'" State v. Gideon, 244 N.J. 538, 556 (2021)
(quoting Pierre, 223 N.J. at 583). Moreover, when a defendant asserts that their
attorney was ineffective for failing to file a motion, they must establish that the
motion would have been successful. State v. O'Neal, 190 N.J. 601, 618-19
(2007); see also State v. Worlock, 117 N.J. 596, 625 (1990) (holding that "[t]he
failure to raise unsuccessful legal arguments does not constitute ineffective
assistance of counsel").
To establish prejudice under the second Strickland/Fritz prong when there
is a guilty plea, "a defendant must show that (i) counsel's assistance was not
'within the range of competence demanded of attorneys in criminal cases'; and
(ii) 'that there is a reasonable probability that, but for counsel's errors, [the
defendant] would not have pled guilty and would have insisted on going to
trial.'" State v. Aburoumi, 464 N.J. Super. 326, 339 (App. Div. 2020) (alteration
in original) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)).
Accordingly, a defendant must "convince the court that a decision to reject the
plea bargain would have been rational under the circumstances." Padilla v.
Kentucky, 559 U.S. 356, 372 (2010).
The Strickland/Fritz two-pronged standard also applies to claims of
ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super.
A-3317-23 8 540, 545-46 (App. Div. 1987). The hallmark of effective appellate advocacy is
the ability to "winnow[] out weaker arguments on appeal and focus[] on one
central issue if possible, or at most on a few key issues." Jones v. Barnes, 463
U.S. 745, 751-52 (1983). Importantly for purposes of this appeal, it is well-
settled that failure to pursue a meritless claim does not constitute ineffective
assistance. State v. Webster, 187 N.J. 254, 256 (2006). Appellate counsel does
not have an obligation to raise spurious issues on appeal. Ibid.
When, as in this case, a PCR court does not hold an evidentiary hearing,
our standard of review is de novo as to both the court's factual inferences drawn
from the record and its legal conclusions. State v. Walker, 478 N.J. Super. 553,
560 (App. Div. 2024). In applying such de novo review, we "view the facts in
the light most favorable to the defendant." State v. Jones, 219 N.J. 298, 311
(2014).
Short of obtaining immediate relief, a defendant may show that an
evidentiary hearing is warranted to develop the factual record in connection with
an ineffective assistance claim. Preciose, 129 N.J. at 462-63. That said, a PCR
petitioner is not automatically entitled to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant "must do
more than make bald assertions that [the defendant] was denied the effective
A-3317-23 9 assistance of counsel. [A defendant] must allege facts sufficient to demonstrate
counsel's alleged substandard performance." State v. Porter, 216 N.J. 343, 355
(2013) (quoting Cummings, 321 N.J. Super. at 170).
Said differently, "[t]he mere raising of a claim for PCR does not entitle
the defendant to an evidentiary hearing." State v. Vanness, 474 N.J. Super. 609,
623 (App. Div. 2023) (citing State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999)). The PCR court should grant an evidentiary hearing only when:
"(1) the defendant establishes a prima facie case in support of PCR; (2) the court
determines that there are disputed issues of material fact that cannot be resolved
by review of the existing record; and (3) the court determines that an evidentiary
hearing is required to resolve the claims asserted." Ibid. (citing State v. Porter,
216 N.J. 343, 354 (2013)). 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." Marshall,
148 N.J. at 158 (citations omitted).
III.
We next apply the foregoing principles to the present matter. As Judge
Batista aptly noted in his written opinion, defendant is attempting to reargue his
pretrial Wade/Henderson motion. Applying de novo review, we agree with
A-3317-23 10 Judge Batista that defendant has not established a prima facie case warranting
an evidentiary hearing. Defendant has not shown, for example, that the result
of the Wade/Henderson proceeding would have been different if defendant's
attorney had performed additional investigation or made additional arguments.
The defendant's reliance on what he characterizes as the victim's inconsistent
statements is unavailing because those alleged inconsistencies do not render the
identification procedure suggestive as to warrant the suppression of
identification testimony. Relatedly, whether the victim ever saw the culprit
without his mask on during the robbery is a credibility question to be determined
by a jury at trial, which defendant elected to forego by pleading guilty.
Furthermore, defendant has not shown that he would have refused the plea
agreement and proceeded to trial if his attorney had performed more
investigation regarding the Wade/Henderson motion. Notably, it was defendant
who sought a plea deal on the day of trial, after the plea cutoff date had passed.
See R. 3:9-3(g). As we stressed in our direct appeal opinion, "the plea agreement
was generous." Leonard, slip op. at 14. Defendant was facing two separate
indictments and was extended-term eligible for the separate crimes alleged in
both indictments. The favorable plea deal provided for a thirteen-year NERA
sentence on the first-degree robbery charge, to be served concurrently with a
A-3317-23 11 forty-two-month period of parole ineligibility on the second-degree unlawful
possession of a weapon count charged in the separate indictment. But for the
plea agreement, given his record of past criminal convictions, defendant would
have faced life imprisonment if convicted of first-degree robbery at trial.
Nor can we ignore the strong evidence against defendant. He was
captured on video walking to—and then running from—the crime scene. A
police officer recognized defendant from the video. And the co-defendant
inculpated the defendant. Accordingly, even if the motion to suppress the
victim's identification testimony had been granted, we are satisfied that
defendant would have taken the extremely favorable plea deal his attorney
negotiated rather than risk an extended term of life imprisonment following an
almost certain armed robbery conviction at trial.
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
A-3317-23 12