NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0026-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK LOVETT,
Defendant-Appellant. _______________________
Argued January 6, 2025 – Decided July 7, 2025
Before Judges Sabatino and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-03-0526.
David A. Gies, Designated Counsel, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; David A. Gies, on the briefs).
Lucille M. Rosano, Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief).
PER CURIAM Defendant Mark Lovett appeals from an order denying his petition for
post-conviction relief (PCR), which the PCR judge entered after conducting an
evidentiary hearing. Defendant claims his trial counsel rendered ineffective
assistance by failing to conduct a pretrial investigation of defendant's location
at the time the crimes of which he was convicted were committed. In particular,
he faults trial counsel for failing to interview two people and to analyze cellular
telephone data the State had provided during discovery. After hearing testimony
from several witnesses, including defendant, his trial counsel, a digital forensic
examiner, and the two individuals defendant contended counsel should have
interviewed, the PCR judge held defendant had failed to establish counsel's
performance was deficient under either prong of the standard articulated by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687
(1984), and adopted under our State Constitution by the New Jersey Supreme
Court in State v. Fritz, 105 N.J. 42, 58 (1987). Perceiving no error in the denial
of defendant's petition, we affirm.
I.
The facts in this case are set forth in detail in our opinion addressing
defendant's direct appeal, and we incorporate them by reference. State v. Lovett,
A-0026-23 2 No. A-2572-14 (App. Div. June 27, 2017). We highlight the following facts
particularly relevant to this appeal.
A drive-by shooting that took place in the City of Orange around 1:00 a.m.
on May 27, 2012, resulted in the death of one victim and the wounding of
another. A grand jury charged defendant and his co-defendant with first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1) and (2); first-
degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); two counts of first-degree
attempt to commit murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2) 1; third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c); and second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
Defendant was tried separately from his co-defendant in 2014. During a
recorded interview taken two days after the shooting, an eyewitness to the
shooting identified defendant by name as the shooter. A portion of the recorded
statement was played for the jury during the trial. The witness recanted his
statement at trial.
Defendant was acquitted of conspiracy to commit murder and was
convicted of aggravated manslaughter as a lesser-included offense of first-
1 The court subsequently granted the State's motion to dismiss one of the counts of first-degree attempt to commit murder. A-0026-23 3 degree purposeful or knowing murder, third-degree aggravated assault as a
lesser-included offense of attempted murder, and the weapons offenses. After
merging some of the convictions, the court sentenced defendant to an aggregate
thirty-one-year term of imprisonment. We affirmed the convictions and
sentence and remanded for correction of some errors in the judgment of
conviction. Lovett, slip op. at 15. The Supreme Court denied defendant's
petition for certification. State v. Lovett, 231 N.J. 562 (2017).
On January 18, 2019, defendant filed a PCR petition, asserting he had
been deprived of his Sixth Amendment right to effective assistance of trial and
appellate counsel. The PCR judge, who had presided over the trial, held an
evidentiary hearing that took place over several days in 2022 and 2023. During
the hearing, defendant testified and presented testimony from his trial attorney,
someone who was a purported girlfriend and alibi witness, a cab driver who was
an alleged alibi witness, and an expert witness in the field of "[d]igital forensic
cell phone tower locations." The State called defendant's private detective and
the homicide victim's mother as rebuttal witnesses.
The trial attorney recalled only some aspects of defendant's trial but
believed he would have argued defendant had no motive to commit the crime
based on the State's lack of motive evidence. He testified that at trial he also
A-0026-23 4 had argued the eyewitness had not identified defendant in his trial testimony and
the State had presented no physical or forensic evidence associating defendant
with the crime. The attorney did not specifically recall if he had discussed
potential witnesses with defendant but testified that "in every case without fail"
he asks his clients to identify alibi witnesses who could testify truthfully that the
client was not at the scene of the crime as alleged by the State. He testified that
in accordance with his usual practice, if defendant had identified any witnesses,
they "would have had further discussions" and he "would have tried to evaluate
whether any potential witnesses were ready, willing, able or [if] it would be of
good strategy to present alibi witnesses" at trial. Based on his experience,
"presenting a bad alibi witness or an unbelievable alibi witness might be more
devastating to a client than presenting no failed alibi witness."
The attorney remembered having "some cell phone records" before trial
but he did not recall having an expert witness review them. According to the
attorney, after speaking with defendant, he "presented the defense that [they]
both agreed [they] should present, which was to fight the State's case . . .
[w]ithout calling any witnesses."
Defendant's purported girlfriend described defendant as someone she had
dated in 2012, though she knew him by a nickname and did not know his actual
A-0026-23 5 name. She testified defendant had come to her apartment in Newark on May 27,
2012, at around 12:50 a.m. and stayed with her there for eight to ten minutes
before leaving around 1:00 a.m. She stated she was alone and defendant had
come over to have sex with her, but they did not have sex before he left. She
testified she had not been contacted by defense counsel before defendant's trial
and no one had asked her to testify at the trial.
According to the girlfriend, she did not learn defendant had been arrested
until 2019, when someone – she did not recall the person's name – who was in
a group of people in a bodega mentioned it to her. She later received a call from
someone telling her to go to a detective agency. She went to the agency and
answered some questions. The testimony she gave at the evidentiary hearing
was not consistent with the information she had provided to the detective.
The private detective testified he had taken a statement from the girlfriend
in 2019. According to the detective, the girlfriend told him defendant had
arrived at her apartment at 12:42 a.m. on May 27, 2012; she was not alone but
was home with her children; and she and defendant had sex before he left at
about 1:00 a.m.
The cab driver testified that on May 27, 2012, he had picked up defendant,
whom he knew by his nickname, in the City of Orange sometime around 12:15
A-0026-23 6 a.m. to 12:30 a.m. and had driven him in fifteen to twenty minutes to an
apartment building in Newark. According to the cab driver, after five to fifteen
minutes, defendant returned to the cab, the cab driver took him to a drive-
through restaurant, and about forty minutes later dropped him off in Bloomfield.
The cab driver testified he had attended the wake of the homicide victim,
whom he described as one of his "VIP client[s]." But he also testified he did not
learn defendant was "in[] trouble" until defendant's mother had told him
sometime in 2015 to 2017 defendant was in jail. He testified someone from the
detective agency had called him in 2020, but he did not know how the agency
had obtained his name or phone number.
The homicide victim's mother testified her son never had a "VIP" cab
driver and would not have needed one because he had access to a car. She also
denied the cab driver had attended her son's wake but conceded on cross-
examination it was impossible to know everyone who was there.
Before the expert witness testified, defense counsel advised the judge the
digital-forensics company retained by defendant had not sent the person who
had authored the report at issue to testify but instead had sent "a different
engineer." Defense counsel informed the judge the witness would "testify as to
the cell tower locations" but was "not offering opinions as to a reasonable degree
A-0026-23 7 of . . . engineering certainty." The witness testified he had examined cell-phone
tower records for the date of the shooting for two cell phone numbers. He
admitted he had not confirmed the subscriber information for the numbers
provided to his company. He explained that based on the cell-phone tower
records, he was unable to determine an exact location of a cell phone associated
with those numbers on the night of the shooting but testified that the information
in the records was consistent with the posed hypothetical of the person
possessing the cell phone being in the Newark apartment complex at
approximately 1:00 a.m. and at the drive-through restaurant at about 1:15 a.m.
He acknowledged the cell-tower information might "contain a percentage of
false/positive[s]." The expert had not examined the phone that was in evidence
before he testified. He subsequently examined the phone but, as defense counsel
later advised the judge, he found the phone's SIM card had been removed, and
he consequently was unable to obtain any additional information from the
phone.
Defendant testified he and his trial attorney had met and reviewed his
discovery materials, including his cell-phone records, several times in
preparation for the trial. According to defendant, he asked the attorney to obtain
a cell-phone expert and the attorney told him he was going to "look into it."
A-0026-23 8 Defendant testified he had learned counsel had not obtained an expert when he
saw the witness sheet at trial. Defendant stated he then asked counsel why he
did not obtain an expert, but he did not recall counsel's response.
Defendant also testified he had told his trial attorney about the two
purported alibi witnesses and had asked him to "look into" those witnesses and
to try to "get tape" from the drive-through restaurant. He thought counsel had
hired an investigator to look into the witnesses and obtain the tape. He asserted
he had asked counsel approximately fifty times to investigate the witnesses.
According to defendant, he learned the defense was not calling any witnesses
when he saw the witness sheet at trial. Defendant testified that if he had been
able to obtain a cell-phone expert and statements of the purported alibi
witnesses, he would have used them at trial.
The PCR judge denied defendant's petition in an order he entered and a
decision he placed on the record on June 27, 2023. The judge concluded
defendant had failed to show trial counsel's performance was deficient or that
he had been prejudiced by the alleged deficient performance. Consequently, the
judge found defendant had failed to satisfy either prong under the
Strickland/Fritz standard for ineffective-assistance-of-counsel claims.
A-0026-23 9 In his opinion, the judge made express credibility determinations. He
found defendant's trial attorney credible and that the attorney had honestly
testified about what he reasonably could or could not remember from a trial that
had taken place many years before. Characterizing the case against defendant
as having "more to do with identification of the defendant than it [had] to do
with the possibility of raising an alibi," the judge found "[c]ounsel's fear that a
weak alibi could cause more harm than good is a type of strategic decision that
should not be second guessed on appeal."
The judge did not find the girlfriend to be a credible witness, citing her
lack of knowledge of defendant, the discrepancies between her testimony and
the statements she had made to the private detective, and that after the night of
the shooting she did not learn what had happened to defendant until she was in
a bodega seven years later discussing him with people she could not identify at
the hearing. The judge also found the cab driver not credible, noting he had
recalled details particular to defendant's purported alibi but not information
regarding streets and addresses an experienced cab driver would remember. The
judge found credible the testimony of the victim's mother rebutting the cab
driver's assertions regarding his relationship with the victim. The judge believed
the purported alibi witnesses' specific recollection of details helpful to defendant
A-0026-23 10 and lack of recollection of other information "call[ed] in serious question"
whether they had been coached in their testimony.
The judge did not find the expert witness credible. The judge noted the
witness had not acted on available information, such as contacting the cell
service provider to obtain information available to the provider; had not testified
that the programs he used to obtain the cell-phone tower information were
reliable or standard in the industry; had relied on information that was not
certified to be complete; was unable to certify the accuracy of any of the results;
and had conceded he could not determine the exact location of the cell phone on
the night of the shooting. The judge did not believe the witness would have
been qualified as an expert pursuant to a Rule 104 hearing at trial or that, if he
testified, he would have "provided a reasonable doubt in the jury's mind . . . ."
The judge found defendant had not testified the phone was in his
possession at the time of the shooting, had not denied shooting the victims, had
not been truthful about his discussions with trial counsel, and had not established
trial counsel was aware of the existence of the alleged alibi witnesses. The judge
also found defendant had failed to satisfy his burden under Rule 3:22-4(a)
because he had asserted he knew about the witnesses and cell-phone records
before trial.
A-0026-23 11 The judge concluded defendant had failed to establish trial counsel was
aware of the existence of the "newly-proffered" witnesses and, thus, had failed
to establish trial counsel's performance was deficient. The judge also found
defendant had failed to establish he was prejudiced by the alleged deficient
performance. Accordingly, the judge denied defendant's petition.
This appeal followed. Defendant presents the following arguments for
our consideration.
POINT ONE
GIVEN THE STATE'S LESS THAN OVERWHELMING PROOFS, DEFENDANT WAS PREJUDICED BY HIS TRIAL ATTORNEY'S FAILURE TO CALL TWO WITNESSES WHOSE TESTIMONY RELATED TO A MATERAL FACT IN THE CASE.
POINT TWO
A FUNDAMENTAL INJUSTICE RESULTED BY THE FAILURE OF DEFENDANT'S TRIAL ATTORNEY TO CONDUCT A PRETRIAL ANALYSIS OF THE CELLULAR TELEPHONE DATA PRODUCED BY THE STATE AS DISCOVERY.
Unpersuaded by those arguments, we affirm.
A-0026-23 12 II.
When a PCR court has held an evidentiary hearing and has made "factual
findings based on live testimony, an appellate court applies a deferential
standard; it 'will uphold the PCR court's findings that are supported by sufficient
credible evidence in the record.'" State v. Pierre, 223 N.J. 560, 576 (2015)
(quoting State v. Nash, 212 N.J. 518, 540 (2013)). We defer to the PCR judge's
credibility determinations of a witness the judge had the opportunity to observe
firsthand. Ibid. We give that deference because the judge had the "opportunity
to hear and see the witnesses and to have the feel of the case, which a reviewing
court cannot enjoy." State v. Nuñez-Valdéz, 200 N.J. 129, 141 (2009) (quoting
State v. Elders, 192 N.J. 224, 244 (2007)).
We uphold a PCR court's findings on appeal that are "supported by
sufficient credible evidence in the record." Nash, 212 N.J. at 540. In addition,
when a jury verdict has been upheld on appeal, the decision "should not be
disturbed except for the clearest of reasons." Id. at 541 (quoting State v. Ways,
180 N.J. 171, 187 (2004)). Although we give deference to the factual and
credibility determinations of a PCR judge, we do not defer to the judge's
interpretation of law, which we review de novo. Id. at 540-41; see also State v.
L.G.-M., 462 N.J. Super. 357, 365 (App. Div. 2020).
A-0026-23 13 The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee defendants in a criminal
proceeding the right to the assistance of counsel in their defense. The right to
counsel requires "the right to the effective assistance of counsel." Nash, 212
N.J. at 541 (quoting Strickland, 466 U.S. at 686) (internal quotation marks
omitted).
To establish a prima facie case of ineffective assistance of counsel, a
defendant must show a "reasonable likelihood" of success under the two-prong
test outlined in Strickland. State v. Preciose, 129 N.J. 451, 463 (1992); see also
Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 58. The Strickland test requires
that defendant show (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" and (2)
counsel's "deficient performance prejudiced the defense." Fritz, 105 N.J. at 52
(quoting Strickland, 466 U.S. at 687); see also State v. Vanness, 474 N.J. Super.
609, 623 (App. Div. 2023). "With respect to both prongs of the Strickland test,
a defendant asserting ineffective assistance of counsel on PCR bears the burden
of proving his or her right to relief by a preponderance of the evidence." State
v. Gaitan, 209 N.J. 339, 350 (2012); see also State v. Young, 474 N.J. Super.
507, 516 (App. Div. 2023). If a defendant fails to sustain his burden under either
A-0026-23 14 prong of the standard, a defendant's ineffective-assistance-of-counsel claim
fails. Strickland, 466 U.S. at 687.
Under the first prong, a defendant must show "counsel's acts or omissions
fell outside the wide range of professionally competent assistance considered in
light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366
(2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). Our analysis
under the first prong is highly deferential to counsel. State v. Arthur, 184 N.J.
307, 318 (2005); see also State v. Fisher, 156 N.J. 494, 500 (1998) (finding
"[u]nder the first prong of the [Strickland] test, counsel's performance is to be
reviewed with 'extreme deference . . . .'" (quoting Fritz, 105 N.J. at 52)). When
"applying the first [Strickland] prong, courts are required . . . 'to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.'" Fisher, 156 N.J. at 500 (quoting Strickland,
466 U.S. at 689).
There is "'a strong presumption' that [counsel] provided reasonably
effective assistance" and counsel's "decisions followed a sound strategic
approach to the case[,]" Pierre, 223 N.J. at 579 (quoting Strickland, 466 U.S. at
689), even when a strategic decision turns out to be a mistake, State v.
Buonadonna, 122 N.J. 22, 42 (1991). A defendant may rebut the presumption
A-0026-23 15 of effectiveness by proving trial counsel's actions were not "sound trial
strategy." Arthur, 184 N.J. at 319 (quoting Strickland, 466 U.S. at 689).
Under the second Strickland prong, a defendant must "affirmatively
prove" "a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." State v. Gideon, 244
N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 693). "A reasonable
probability is a probability sufficient to undermine confidence in the outcome."
Ibid. (quoting Strickland, 466 U.S. at 694). Proof of prejudice under Strickland's
second prong "is an exacting standard." Ibid. (quoting Allegro, 193 N.J. at 367).
An ineffective-assistance-of-counsel claim may be established "when
counsel fails to conduct an adequate pre-trial investigation." State v. Porter, 216
N.J. 343, 352 (2013). "[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at
691. "Failure to investigate an alibi defense is a serious deficiency that can
result in the reversal of a conviction." Porter, 216 N.J. at 353; see also Pierre,
223 N.J. at 582-88 (holding that counsel's presentation of an alibi defense was
A-0026-23 16 deficient and prejudicial because he failed to interview known, key witnesses
who could have bolstered that defense and "chose to forego evidence that could
have reinforced that alibi," entitling defendant to a new trial).
Given the deferential standard we apply 2 and the record developed during
the evidential hearing, we do not have a basis to reject the judge's determination
that defendant failed to establish ineffective assistance of counsel based on the
purported alibi witnesses. The judge found credible trial counsel's testimony
and incredible the testimony of defendant and the purported witnesses. Trial
counsel credibly testified that "in every case without fail" he asks his clients to
identify alibi witnesses and that if defendant had identified any witnesses, they
"would have had further discussions" and he "would have tried to evaluate
whether any potential witnesses were ready, willing, able or [if] it would be of
good strategy to present alibi witnesses" at trial.
Considering that credible testimony and the incredible testimony of the
other witnesses presented, the judge reasonably rejected defendant's testimony
2 Defendant suggests we should not defer to the judge's credibility determinations because the judge made minor errors in recounting details of some of the testimony presented. Those minor errors are not enough to overcome the presumption of deference to the judge's overall assessment of credibility. And even if they were, we would reach the same conclusions as to credibility based on the record before us. A-0026-23 17 he had told counsel about the purported alibi witnesses and concluded defendant
had failed to establish trial counsel knew about the purported alibi witnesses
before they were identified in this PCR petition. Not knowing about the
witnesses, he could not have investigated them. See State v. Gonzalez, 223 N.J.
Super. 377, 392 (App. Div. 1988) (finding "[T]he existence of alibi witnesses
[is] peculiarly within the knowledge of the defendant himself. If he failed to
cooperate with counsel by informing him of their existence, then he cannot now
complain that counsel did not know of them." (quoting People v. Elder, 391
N.E.2d 403, 411 (Ill. App. Ct. 1979))).
We also perceive no basis to disturb the judge's conclusion defendant
failed to establish the second prong of the Strickland test. The trial attorney
credibly testified that, had defendant told him about the purported alibi
witnesses, he would have evaluated whether the witnesses were able to testify
truthfully defendant was not at the scene of the crime and that, based on his
experience, "presenting a bad alibi witness or an unbelievable alibi witness
might be more devastating to a client than presenting no . . . alibi witness."
Having heard the testimony of the purported alibi witnesses, the PCR judge
concluded they were not credible – a conclusion we readily understand even on
the basis of the "cold record" before us. Nash, 212 N.J. at 540. On that record,
A-0026-23 18 defendant did not demonstrate that had he interviewed them, trial counsel would
have or should have called them as trial witnesses. He also did not demonstrate
"a reasonable probability" that had the purported alibi witnesses testified at trial,
"the result of the proceeding would have been different." Gideon, 244 N.J. at
551 (quoting Strickland, 466 U.S. at 693).
We reach the same conclusion as to the expert witness. Given the
limitations of and deficiencies in his testimony and defendant's testimony,
defendant failed to establish by a preponderance of the credible evidence
presentation of the cell-phone tower evidence would have altered the result of
the trial.
Based on the record presented, including the testimony given at the
evidentiary hearing, we discern no error in the judge's determinations that
defendant failed to sustain his burden under the Strickland standard to establish
his ineffective-assistance-of-counsel claim. We therefore affirm the June 27,
2023 order denying defendant's PCR petition. Because we conclude defendant
failed to meet the Strickland standard, we do not address defendant's argument
regarding the judge's finding he also was procedurally barred from bringing this
petition.
Affirmed.
A-0026-23 19