NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0215-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRICE O. BERRY,
Defendant-Appellant. _______________________
Submitted December 10, 2024 – Decided January 7, 2025
Before Judges Chase and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-06- 1040.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Alecia N. Woodward, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Tyrice O. Berry appeals from a Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Based on our thorough review of the record and application of prevailing law,
we affirm.
I.
A.
We incorporate by reference, the facts and procedural history stated in
our prior opinion. See State v. Berry, No. A-3819-17 (App. Div. Apr. 19,
2022) (Berry I), certif. denied, 252 N.J. 143 (2022). We provide only the
salient facts from the record to give context to this particular appeal.
During the sixteen-day jury trial, the State proffered testimony from
twenty-one witnesses, including the two victims, Rashawn Brown and
Chauncey Toran. Berry I, slip op. at 5. In Berry I, we recounted the facts:
[A]t approximately 1:15 a.m. on October 19, 2012, Asbury Park Police Officer Steven Love was involved in an unrelated investigation when he "heard . . . about ten gunshots in the area." Love immediately drove towards the location of the shots and observed a vehicle outside the Cameo Bar on Main Street with "both [front] doors . . . open," "the back window . . . shattered," and "bullet holes all through the car." On the sidewalk, Love saw two men "hunched over," both of whom had been shot. The injured men were later
A-0215-23 2 identified as Rashawn Brown and Chauncey Toran. Neither could identify the shooters . . . .
[Berry I, slip op. at 5-6.]
On direct examination, Brown testified that when the officers presented
him with photographs of the alleged shooters and asked Brown if he
recognized them, Brown responded that he told the officers, "[n]o. Never —I
never even seen these kids."
Naquan Sims, a childhood friend of defendant, testified he was in a
friend's apartment when defendant came "bust[ing] through the door" stating
"somebody owed him money," "he got what he got," and "so he got shot."
Sims did not believe that defendant shot someone until he saw a news report
and recognized defendant as the shooter because he was wearing "a Halloween
mask with [an Afro]" similar to the one Sims had seen defendant wearing
about a "[w]eek prior." On cross examination, Sims could not recall the names
of the other individuals present in the apartment when defendant allegedly
confessed to the shooting.
The jury found defendant guilty on multiple charges, including first -
degree attempted murder and aggravated assault. Defendant appealed, arguing
the trial judge erred in denying his motion for judgment of acquittal.
A-0215-23 3 We affirmed, concluding the State's evidence was sufficient to withstand
the acquittal motion, and there was no error in determining the jury could find
defendant guilty beyond a reasonable doubt when collectively considering the
testimony proffered by the DNA expert and Sims. See Berry I, slip op. at 21-
22. We concluded "the State presented expert testimony tying defendant's
DNA to the beard and the walking stick the shooter was seen wearing and
carrying, respectively, in the surveillance videos." Id. at 21. We rejected
defendant's argument that his convictions were not supported by the trial
record because Sims was not a credible witness, reasoning that credibility
issues were for the jury to decide. Id. at 21-22.
B.
Defendant subsequently filed a PCR petition under Rule 3:22 arguing
ineffective assistance of trial counsel, which was denied in a written decision.
The PCR court cited to Berry I and explained the motion for acquittal on the
issue of credibility of a witness should not be relitigated pursuant to Rule 3:22-
5. The PCR court found no disputed issues of material fact requiring an
evidentiary hearing under the Strickland/Fritz1 standard.
1 See Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987).
A-0215-23 4 The PCR court also explained "PCR counsel fails to acknowledge trial
counsel's strategic decision to not explicitly ask the victims if they knew
defendant." Citing to State v. Cummings, 321 N.J. Super. 154 (App. Div.
1999), the PCR court found defendant did not provide the court with the
necessary affidavits or certifications to support his argument that counsel was
ineffective in failing to investigate witnesses. 2
This appeal followed.
II.
Defendant raises the following arguments for our consideration:
POINT I
WHETHER THE PCR COURT WAS CORRECT IN USING THE STRICKLAND/FRITZ STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL RATHER THAN THE CRONIC/SAVAGE 3 STANDARD FOR A PER SE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
POINT II
2 The PCR court made other findings not relevant to the arguments asserted on appeal. 3 See United States v. Cronic, 466 U.S. 648 (1984); State v. Savage, 120 N.J. 594 (1990).
A-0215-23 5 WHETHER DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S PURPORTED FAILURE TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION.
POINT III
[WHETHER] THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR NOT CONDUCTING AN ADEQUATE PRETRIAL INVESTIGATION.
Defendant also submitted a pro se supplemental brief, which repeated the
arguments in his counseled submission.
We distill defendant's arguments to the following: trial counsel was
ineffective for failure to investigate witnesses; trial counsel was ineffective for
failure to present evidence that Brown and the other victim did not know
defendant, to erode the State's theory on motive; trial counsel failed to object
to the prosecutor's statement concerning the victims owing defendant money as
a motive for the shooting; the State withheld exculpatory evidence that the
victim did not make an out of court identification of defendant until the third
day of trial and the photo array was not presented to the defense in violation of
A-0215-23 6 Brady v. Maryland, 373 U.S. 83 (1963); 4 and defendant's trial counsel was per
se ineffective pursuant to Cronic and Savage and, even if counsel was not per
se ineffective, the PCR court should have held an evidentiary hearing.
III.
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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-0215-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRICE O. BERRY,
Defendant-Appellant. _______________________
Submitted December 10, 2024 – Decided January 7, 2025
Before Judges Chase and Vanek.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-06- 1040.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Alecia N. Woodward, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Tyrice O. Berry appeals from a Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Based on our thorough review of the record and application of prevailing law,
we affirm.
I.
A.
We incorporate by reference, the facts and procedural history stated in
our prior opinion. See State v. Berry, No. A-3819-17 (App. Div. Apr. 19,
2022) (Berry I), certif. denied, 252 N.J. 143 (2022). We provide only the
salient facts from the record to give context to this particular appeal.
During the sixteen-day jury trial, the State proffered testimony from
twenty-one witnesses, including the two victims, Rashawn Brown and
Chauncey Toran. Berry I, slip op. at 5. In Berry I, we recounted the facts:
[A]t approximately 1:15 a.m. on October 19, 2012, Asbury Park Police Officer Steven Love was involved in an unrelated investigation when he "heard . . . about ten gunshots in the area." Love immediately drove towards the location of the shots and observed a vehicle outside the Cameo Bar on Main Street with "both [front] doors . . . open," "the back window . . . shattered," and "bullet holes all through the car." On the sidewalk, Love saw two men "hunched over," both of whom had been shot. The injured men were later
A-0215-23 2 identified as Rashawn Brown and Chauncey Toran. Neither could identify the shooters . . . .
[Berry I, slip op. at 5-6.]
On direct examination, Brown testified that when the officers presented
him with photographs of the alleged shooters and asked Brown if he
recognized them, Brown responded that he told the officers, "[n]o. Never —I
never even seen these kids."
Naquan Sims, a childhood friend of defendant, testified he was in a
friend's apartment when defendant came "bust[ing] through the door" stating
"somebody owed him money," "he got what he got," and "so he got shot."
Sims did not believe that defendant shot someone until he saw a news report
and recognized defendant as the shooter because he was wearing "a Halloween
mask with [an Afro]" similar to the one Sims had seen defendant wearing
about a "[w]eek prior." On cross examination, Sims could not recall the names
of the other individuals present in the apartment when defendant allegedly
confessed to the shooting.
The jury found defendant guilty on multiple charges, including first -
degree attempted murder and aggravated assault. Defendant appealed, arguing
the trial judge erred in denying his motion for judgment of acquittal.
A-0215-23 3 We affirmed, concluding the State's evidence was sufficient to withstand
the acquittal motion, and there was no error in determining the jury could find
defendant guilty beyond a reasonable doubt when collectively considering the
testimony proffered by the DNA expert and Sims. See Berry I, slip op. at 21-
22. We concluded "the State presented expert testimony tying defendant's
DNA to the beard and the walking stick the shooter was seen wearing and
carrying, respectively, in the surveillance videos." Id. at 21. We rejected
defendant's argument that his convictions were not supported by the trial
record because Sims was not a credible witness, reasoning that credibility
issues were for the jury to decide. Id. at 21-22.
B.
Defendant subsequently filed a PCR petition under Rule 3:22 arguing
ineffective assistance of trial counsel, which was denied in a written decision.
The PCR court cited to Berry I and explained the motion for acquittal on the
issue of credibility of a witness should not be relitigated pursuant to Rule 3:22-
5. The PCR court found no disputed issues of material fact requiring an
evidentiary hearing under the Strickland/Fritz1 standard.
1 See Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987).
A-0215-23 4 The PCR court also explained "PCR counsel fails to acknowledge trial
counsel's strategic decision to not explicitly ask the victims if they knew
defendant." Citing to State v. Cummings, 321 N.J. Super. 154 (App. Div.
1999), the PCR court found defendant did not provide the court with the
necessary affidavits or certifications to support his argument that counsel was
ineffective in failing to investigate witnesses. 2
This appeal followed.
II.
Defendant raises the following arguments for our consideration:
POINT I
WHETHER THE PCR COURT WAS CORRECT IN USING THE STRICKLAND/FRITZ STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL RATHER THAN THE CRONIC/SAVAGE 3 STANDARD FOR A PER SE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
POINT II
2 The PCR court made other findings not relevant to the arguments asserted on appeal. 3 See United States v. Cronic, 466 U.S. 648 (1984); State v. Savage, 120 N.J. 594 (1990).
A-0215-23 5 WHETHER DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S PURPORTED FAILURE TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION.
POINT III
[WHETHER] THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR NOT CONDUCTING AN ADEQUATE PRETRIAL INVESTIGATION.
Defendant also submitted a pro se supplemental brief, which repeated the
arguments in his counseled submission.
We distill defendant's arguments to the following: trial counsel was
ineffective for failure to investigate witnesses; trial counsel was ineffective for
failure to present evidence that Brown and the other victim did not know
defendant, to erode the State's theory on motive; trial counsel failed to object
to the prosecutor's statement concerning the victims owing defendant money as
a motive for the shooting; the State withheld exculpatory evidence that the
victim did not make an out of court identification of defendant until the third
day of trial and the photo array was not presented to the defense in violation of
A-0215-23 6 Brady v. Maryland, 373 U.S. 83 (1963); 4 and defendant's trial counsel was per
se ineffective pursuant to Cronic and Savage and, even if counsel was not per
se ineffective, the PCR court should have held an evidentiary hearing.
III.
Having reviewed the record and considered the applicable legal
standards, we are unpersuaded by defendant's arguments and affirm
substantially for the reasons set forth by the PCR judge in their well-reasoned
written decision.
We begin our analysis by recognizing our standard of review as de novo,
where, as here, no evidentiary hearing was conducted. State v. Blake, 444 N.J.
Super. 285, 294 (App. Div. 2016) (citing State v. Harris, 181 N.J. 391, 421
(2004)). We review the PCR court's determination to proceed without an
evidentiary hearing under an abuse of discretion standard. State v. Brewster,
429 N.J. Super. 387, 401 (App. Div. 2013).
4 Arguments three and four were raised by defendant in his pro se supplemental brief.
A-0215-23 7 B.
Under Rule 3:22-4,5 "a defendant is barred from raising any issue in a
PCR petition that could have been raised on direct appeal unless one of three
enumerated exceptions apply." State v. Wildgoose, 479 N.J. Super. 331, 344
(App. Div. 2024) (citing State v. Nash, 212 N.J. 518, 546 (2013)). Those
exceptions do not apply here because the argument could have been raised on
defendant's direct appeal, barring defendant's argument would not result in
5 Rule 3:22-4(a) states:
Any ground for relief not raised in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey . . . .
A-0215-23 8 "fundamental injustice," and a denial of PCR relief would not "be contrary to
the Constitution of the United States or the State of New Jersey." See R. 3:22-
4(a).
Additionally, Rule 3:22-3 6 confirms that a PCR petition "is not . . . a
substitute for appeal from conviction . . . ." The Supreme Court of New Jersey
has articulated that "[a] defendant ordinarily must pursue relief by direct
appeal, [R. 3:22-3], and may not use [PCR] to assert a new claim that could
have been raised on direct appeal [R. 3:22-4]." State v. McQuaid, 147 N.J.
464, 483 (1997).
On direct appeal, defendant did not argue that the State failed to reveal
exculpatory evidence until the third day of trial in violation of Brady, 373 U.S.
83. Since defendant "may not use post-conviction relief to assert a new claim
6 Rule 3:22-3 states:
Except as otherwise required by the Constitution of New Jersey, a petition pursuant to this rule is the exclusive means of challenging a judgment rendered upon conviction of a crime. It is not, however, a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending.
A-0215-23 9 that could have been raised on direct appeal," defendant's Brady argument is
barred pursuant to Rule 3:22-3 and 4.
C.
To establish a prima facie case of ineffective assistance of counsel
through a PCR petition, a defendant must establish the following: 1) counsel's
performance was deficient; and 2) the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. To satisfy the first
Strickland/Fritz prong, a defendant must "show[] that counsel made errors so
serious that counsel was not functioning as the 'counsel' guaranteed [to] the
defendant by the Sixth Amendment" and "that counsel's representation fell
below an objective standard of reasonableness." Strickland, 466 U.S. at 687-
88.
"[I]n making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance . . . ." Id. at 689. As such, a defendant "must 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)).
A-0215-23 10 To satisfy the second prong "[t]he error committed must be so serious as
to undermine the court's confidence in the jury's verdict or result reached."
State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466 U.S. at 694).
This prong generally requires that a defendant establish a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694.
We affirm the PCR court, concluding trial counsel's performance did not
fall below the "objective standard of reasonableness" necessary to satisfy the
first prong of Strickland/Fritz. Trial counsel's decision not to object to the
State's arguments concerning defendant's motive do not constitute ineffective
assistance. See State v. Bey, 161 N.J. 233, 251 (1999) ("Merely because a trial
strategy fails does not mean that counsel was ineffective."). Instead, counsel
chose to focus on identification as a matter of trial strategy, eliciting facts
regarding Brown's inability to identify defendant.
We are unpersuaded by defendant's argument that, had trial counsel
explicitly asked Brown if he knew defendant, it would have raised "reasonable
doubt to the jury; [t]herefore possibly changing the outcome of the trial."
Defendant's argument fails to overcome the presumption that counsel's
decision was sound trial strategy and does not establish his performance was
A-0215-23 11 objectively unreasonable. The record shows that trial counsel impeached
Brown by demonstrating his inability to identify the shooters in a photo array.
Defendant also fails to establish a prima facie case of ineffective
assistance of counsel under the Strickland/Fritz standard with respect to trial
counsel's purported failure to investigate other potential witnesses to
defendant's inculpatory statements to Sims on the evening of the incident.
During pretrial investigation, counsel "has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary[,]" and counsel's failure to do so will "render the
lawyer's performance deficient." State v. Porter, 216 N.J. 343, 353 (2013)
(quoting Chew, 179 N.J. at 217). "[W]hen a petitioner claims [a] trial attorney
inadequately investigated [the] case, [to establish a prima facie claim of
ineffective counsel the petitioner] must assert the facts that an investigation
would have revealed, supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the certification. "
Ibid. (quoting Cummings, 321 N.J. Super. at 170). Defendants must "do more
than make bald assertions that [they were] denied the effective assistance of
counsel" to establish a prima facie claim due to an alleged failure to conduct
pretrial investigations. Cummings, 321 N.J. Super. at 170. The record
A-0215-23 12 contains none of the factual affidavits or certifications required under
Cummings.
We discern no error in the court's denial of defendant's claims without a
hearing, based on our conclusion that the record does not substantiate a prima
facie claim for PCR. Pursuant to Rule 3:22-10(b), it is only proper for a PCR
court to grant an evidentiary hearing when the defendant has presented a prima
facie claim, material issues of disputed fact lie outside the record, and
resolution of those issues necessitates a hearing. Porter, 216 N.J. at 355.
Since we conclude that defendant failed to establish a prima facie case under
Strickland/Fritz, we need not reach the issue of whether defendant's trial
counsel was per se ineffective under the standard articulated in Cronic/Savage.
To the extent we have not addressed any of defendant's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0215-23 13