STATE OF NEW JERSEY VS. KENNETH BODDIE (07-02-0168, PASSAIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 9, 2021
• Docket: A-0146-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0146-19

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KENNETH BODDIE,

Defendant-Respondent. __________________________

Submitted January 25, 2021 – Decided February 9, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-02-0168.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from a June 25, 2019 order denying his petition for

post-conviction relief (PCR). Judge Joseph A. Portelli conducted an evidentiary

hearing, entered the order under review, and rendered a thorough and

comprehensive oral opinion in which he made significant findings and

conclusions of law.

The order under review comes to us after we remanded in part for a PCR

evidentiary hearing. See State v. Boddie, No. A-0975-16 (App. Div. Aug. 15,

2018). We did so because an earlier PCR judge made credibility findings

without first conducting a hearing. Boddie, slip op. at 3. Specifically, as to

those findings, we stated:

the PCR court found defendant's claims that his trial counsel failed to investigate his alibi defense lacked credibility, in part, because of the timing of the claims. However, "[a]ssessment of credibility is the kind of determination 'best made through an evidentiary proceeding with all its explorative benefits, including the truth-revealing power which the opportunity to cross-examine bestows.'" Id. at 347 (quoting State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)). Because the PCR court incorrectly made credibility determinations without first conducting an evidentiary hearing, we are constrained to reverse and remand for an evidentiary hearing on defendant's claim that trial counsel rendered ineffective assistance by failing to investigate and call defendant's father and sister as alibi witnesses. On remand, defendant must satisfy both prongs of the Strickland test.

A-0146-19 2 [Boddie, slip op. at 10-11.]

On appeal, and after the hearing, defendant argues:

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL FAILED TO PURSUE AN ALIBI DEFENSE.

We affirm substantially for the reasons given by the judge and add these brief

remarks.

To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in

State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,

a defendant must establish that his counsel "made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." 466 U.S. at 687. The defendant must rebut the "strong

presumption that counsel's conduct [fell] within the wide range of reasonable

professional assistance[.]" Id. at 689. Thus, this court must consider whether

counsel's performance fell below an object standard of reasonableness. Id. at

688.

To satisfy the second Strickland/Fritz prong, a defendant must show "that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

A-0146-19 3 whose result is reliable." Id. at 687. A defendant must establish "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's

performance has been so deficient as to create a reasonable probability that these

deficiencies materially contributed to defendant's conviction, the constitutional

right will have been violated." Fritz, 105 N.J. at 58.

The evidentiary hearing took two days, at which the judge heard testimony

from defendant's trial counsel, defendant's sister, defendant's father, and

defendant. The judge found—contrary to defendant's position—that no one had

ever told trial counsel there was an alibi defense. The judge concluded that

defendant failed to satisfy either prong of Strickland.

As to the first prong, the judge concluded trial counsel's performance did

not fall below an objective standard of reasonableness. He made that conclusion

in large part based on his credibility findings. The judge found trial counsel to

be competent, capable, and credible. Had he been informed "there were alibi

witnesses, he would have at least interviewed them." And as to the witnesses

called by defendant, the judge "d[id] not believe" the sister and father, who never

spoke up at the trial about the purported defense even though they attended every

A-0146-19 4 day, and that their testimony was inconsistent. As to defendant, the judge

considered defendant's prior record and made similar findings.

As to prong two, the error must have more than some "conceivable effect

on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App.

Div. 2001).

The judge found that "there is more than a reasonable probability that the

outcome of [the] trial would not have been different." Defendant therefore did

not satisfy prong two.

We apply a deferential standard of review to an appeal of a denial of a

PCR petition following an evidentiary hearing. State v. Pierre, 223 N.J. 560,

576 (2015) (quoting Nash, 212 N.J. at 540). The factual findings made by a

PCR judge will be accepted if they are based on "sufficient credible evidence in

the record." Ibid. (quoting Nash, 212 N.J. at 540). The record here contains

sufficient credible evidence to support the judge's findings.

Affirmed.

A-0146-19 5