NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1794-13T2 A-5857-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE TURNER,
Defendant-Appellant. _________________________________________________
Submitted January 10, 2017 – Decided September 7, 2017
Before Judges Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-02-0122.
Joseph E. Krakora, Public Defender, attorney for appellant in A-1794-13 (Andrew J. Shaw, Designated Counsel, on the brief).
Maurice Turner, appellant pro se in A-5857- 13.
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Scott J. Gershman, Assistant Prosecutor, of counsel and on the brief in A-1794-13; Laura Sunyak, Assistant Prosecutor, of counsel and on the brief in A-5857-13). PER CURIAM
Tried to a jury, defendant Maurice Turner was convicted of
first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count one); first-
degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); and
first-degree robbery, N.J.S.A. 2C:15-1 (count four). The
sentencing judge merged count two with count one and imposed a
life sentence on count one, subject to the eighty-five percent
parole ineligibility term required by the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, and a concurrent twenty-year
sentence on count four.
On appeal, defendant claimed a detective's testimony
included inadmissible hearsay; the prosecutor's summation
improperly relied on facts not in evidence and usurped the
function of the jury; the jury charge on theft incorporated
facts not in evidence; the written outline of the elements of
the offenses, which was distributed to the jury, arranged the
crimes in a sequence that emphasized the most serious charges,
thereby increasing the likelihood of conviction; trial counsel
provided ineffective assistance by failing to move for a new
trial; and the sentence imposed was excessive, especially when
compared to the sentence imposed on a co-defendant who was
convicted of felony murder and robbery. We rejected these
arguments and affirmed. State v. Turner, No. A-1227-07 (App.
2 A-1794-13T2 Div. Oct. 13, 2009) (slip op. at 2). Defendant's petition for
certification was denied. 201 N.J. 446 (2010).
In October 2010, defendant filed a pro se petition for
post-conviction relief (PCR) alleging a laundry list of claims
of ineffective assistance of trial and appellate counsel. PCR
counsel was assigned and sought production of documents relating
to a detective who testified at trial claiming the documents
could have been used at trial to impeach the detective. The
motion was denied after oral argument.
Before his first PCR petition was decided, defendant
submitted a pro se supplemental letter brief raising additional
claims of ineffective assistance of trial counsel including,
failure to move to suppress data retrieved from cell phones, and
failure to move to suppress a black shirt which contained
defendant's DNA.
On August 13, 2013, the PCR judge issued an order declining
to consider defendant's pro se supplemental brief and denying
relief without a hearing on the remaining claims. Defendant
filed a notice of appeal on December 12, 2013, which we accepted
as filed within time.
While his appeal was pending, defendant filed a second PCR
petition attempting to raise the claims he had advanced in his
rejected pro se supplemental brief. On July 9, 2014, a
3 A-1794-13T2 different PCR judge filed an order accompanied by a decision
denying defendant's second petition as procedurally barred.
Defendant now appeals from that order and the order of August
13, 2013.
As to the first appeal (A-1794-13), defendant raises the
following arguments:
POINT I
THE PCR COURT ERRED IN FAILING TO ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ALL OF THE DEFENDANT'S CLAIMS.
POINT II
THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT HAD ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLANT COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS.
A. TRIAL COUNSEL'S FAILURE TO CORRECTLY ADVISE THE DEFENDANT AS TO HIS SENTENCING EXPOSURE.
B. TRIAL COUNSEL'S FAILURE TO REQUEST A CLAWANS[1] CHARGE AND TO MOVE TO DISQUALIFY THE PROSECUTOR FOR TESTIFYING AS A WITNESS.
C. TRIAL COUNSEL'S FAILURE TO ATTACK THE CREDIBILITY OF DETECTIVE EDGAR RIOS.
D. TRIAL COUNSEL'S FAILURE TO OBJECT TO THE RACIAL COMPOSITION OF THE JURY.
1 State v. Clawans, 38 N.J. 162 (1962).
4 A-1794-13T2 E. TRIAL COUNSEL'S CUMULATIVE ERRORS.
POINT III
THE PCR COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO COMPEL THE PRODUCTION OF RECORDS.
As to the second appeal (A-5857-13), defendant raises the
following points:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PART 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PCR COURT'S REFUSAL TO HOLD A POST- CONVICTION RELIEF EVIDENTIARY HEARING TO ADJUDICATE THE DEFENDANT'S CLAIM THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN HIS LAWYER FAILED TO FILE A CLEARLY MERITORIOUS MOTION TO SUPPRESS THE CELL PHONES WHICH WERE ILLEGALLY SEIZED WITHOUT A SEARCH WARRANT AND CALL DETAIL RECORDS AS BEING THE FRUIT OF THE POISONOUS TREE.
B. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN HIS LAWYER FAILED TO FILE A CLEARLY MERITORIOUS MOTION TO SUPPRESS THE BLACK STATE PROPERTY SHIRT WHICH WAS ILLEGALLY SEIZED WITHOUT A SEARCH WARRANT AND DNA MATCH AS BEING THE FRUIT OF THE POISONOUS TREE.
5 A-1794-13T2 C. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A MOTION FOR DOUBLE JEOPARDY TO BAR RE-TRIAL ON COUNTS I, II, AND IV OF THE INDICTMENT.
D. APPELLANT['S] COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ORDER MARCH 6, 2006 TRIAL TRANSCRIPTS AND RAISE ON DIRECT APPEAL TRIAL COUNSEL FAILED TO FILE A MOTION FOR DOUBLE JEOPARDY TO BAR RE-TRIAL ON COUNTS I, II, AND IV OF THE INDICTMENT.
THE PROCEDURAL BAR TO RELIEF UNDER RULE 3:22- 4 SHOULD NOT APPLY TO APPELLANT'S CLAIMS UNDER POINTS C AND D.
We assume familiarity with the facts as related in our 2009
opinion and do not repeat them here.
First PCR Petition
Defendant first argues that the PCR judge failed to issue
findings of fact and conclusions of law. The judge noted that
the twenty-five "miscellaneous arguments" raised in the initial
petition lacked merit or were already addressed in our 2009
opinion. The judge also observed that defendant "presents bare
allegations without providing specific details on how, when,
why, and where counsel made errors or omissions." The judge
declined to consider the new claims raised in defendant's pro se
6 A-1794-13T2 supplemental brief noting defendant had ample opportunity to
raise the claims in his PCR petition.
We agree that defendant's claims amounted to nothing more
than bald assertions of ineffective assistance and therefore
warranted neither an evidentiary hearing nor any substantive
relief.
Defendant's pro se supplemental submission did not raise
new claims as much as it repeated the claim that trial counsel
was ineffective for failure to file a motion to suppress
unspecified evidence seized without a warrant. The court
disposed of that claim, but did not reference defendant's pro se
brief.
Although defendant abandons most of the ineffective
assistance claims made before the PCR judge, he maintains on
appeal that trial counsel was ineffective for failure to (1)
adequately advise him as to his sentencing exposure, (2) request
an adverse inference charge as to an uncalled witness, (3) move
to disqualify the prosecutor for testifying as a witness, (4)
attack the credibility of a detective who testified at trial,
and (5) object to the racial composition of the jury.
A defendant claiming ineffective assistance of counsel must
show both that counsel's performance was deficient, and that
deficiency caused him or her prejudice. State v. Goodwin, 173
7 A-1794-13T2 N.J. 583, 596 (2002) (quoting Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
The petitioner must demonstrate that counsel's performance fell
outside "the wide range of reasonable professional assistance,"
and that there was a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, supra, 466 U.S. at 689,
694, 104 S. Ct. at 2065, 2068, 80 L. Ed. 2d at 694, 698.
Counsel's strategic choices are entitled to a presumption of
competence, so long as they are made after an adequate factual
and legal investigation. State v. Harris, 181 N.J. 391, 488
(2003) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.
Ct. at 2066, 80 L. Ed. 2d at 695)), cert. denied, 545 U.S. 1145,
125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
To obtain a hearing on a PCR petition, a defendant must
demonstrate a "reasonable likelihood" of relief. State v.
Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.
Ct. 140, 139 L. Ed. 2d 88 (1997). Bald assertions of
ineffective assistance will not suffice. State v. Cummings, 321
N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199
(1999).
Defendant claims that his trial counsel failed to correctly
advise him as to his sentencing exposure, asserting that, had he
8 A-1794-13T2 known he risked a sentence of life imprisonment subject to NERA,
he would have accepted a favorable plea deal. Defendant claims
that counsel advised him that, if convicted, he could be
sentenced to a term of thirty years to life. While defendant
submitted certifications from trial counsel in support of his
petition, it does not corroborate his claim that he was
misinformed as to his exposure.
The PCR judge noted defendant acknowledged his trial
counsel had informed him of his exposure of thirty years to life
in prison and concluded that defendant had failed to establish a
prima facie case for ineffective assistance warranting either an
evidentiary hearing or any substantive relief. We agree.
Defendant's acknowledgment that he was advised his exposure
could extend to life in prison completely undermines his claim
that he was misinformed by trial counsel.
Defendant next challenges his trial counsel's failure to
request an adverse inference charge as to a police lieutenant
who was not called by the State as a witness and counsel's
failure to move to have the prosecutor removed for testifying as
a witness.
When a party seeks an adverse inference charge, the
following factors must be considered:
9 A-1794-13T2 (1) whether the "uncalled witness" was "peculiarly within" one party's control; (2) whether the witness was available "both practically and physically"; (3) whether the uncalled witness's testimony "will elucidate relevant and critical facts in issue"; and (4) whether "such testimony appears to be superior to that already utilized in respect to the fact to be proven."
[Washington v. Perez, 430 N.J. Super. 121, 128-29 (App. Div. 2013) (quoting State v. Hill, 199 N.J. 545, 569 (2009)).]
A decision to give or decline to give an adverse inference
charge is reviewable only for an abuse of discretion. Bradford
v. Kupper Assocs., 283 N.J. Super. 556, 580 (App. Div. 1995),
certif. denied, 144 N.J. 586 (1996).
Defendant's claim arises from an exchange during trial
counsel's cross-examination of Detective Timothy Thomas as to
whether a set of keys were removed from the crime scene prior to
the issuance of a search warrant:
Q: Do you know if it's noted anywhere in Detective Osvai's handwritten logs as to whether these keys were taken from the scene prior to the search warrant being issued?
A: It's probably not noted.
Q: Is the Trenton Police Department and officials from the Mercer County Prosecutor's Office prone to take items from scenes prior to getting search warrants?
[PROSECUTOR]: Objection to the form of the question.
10 A-1794-13T2 THE COURT: Well, are they prone --
[PROSECUTOR]: It's overbroad.
THE COURT: Well, did they in this case?
[PROSECUTOR]: Yes.
THE COURT: It's what happened in this case. Did that happen here?
THE WITNESS: It happened here, it was ordered by my Lieutenant. Lieutenant Parrey ordered Detective Osvai to get the keys to try to identify the victim. It was a critical part in the investigation. We had to find out who the victim was to backtrack how he got there, and that's why he did it.
Defendant claims that his "[t]rial counsel heard a
conversation between the prosecuting attorney and . . .
Thomas[,] in which . . . Thomas was advised to attribute
statements to his Lieutenant in order to avoid the Lieutenant
from being cross-examined." Trial counsel's certifications are
silent on the issue.
Defendant argued before the PCR judge and maintains now
that trial counsel should have requested a Clawans2 charge,
informing the jury that it may draw an adverse inference from
2 Clawans, supra, permits a negative inference to be drawn from the non-production of a witness within the party's control when the witness's testimony would have exposed facts in issue and would have been superior to evidence used by the party. 38 N.J. at 171.
11 A-1794-13T2 the State's failure to call the lieutenant as his testimony
would have been unfavorable to the State. Defendant also argues
that trial counsel should have moved to have the prosecutor
removed for testifying as a witness, presumably because the
prosecutor answered in the affirmative to a single clarifying
question from the judge during the course of Thomas's cross-
examination.
The PCR judge rejected both arguments, reasoning that
defendant's certification was the only support for his
contention that Thomas was ever advised to testify on the
lieutenant's behalf so he could avoid cross-examination. The
judge concluded that a Clawans charge was not warranted.
Defendant fails to explain why the lieutenant's testimony
would have been superior to the detective's testimony as to
render an adverse inference charge clearly appropriate.
Defendant suggests that the State feared subjecting the
lieutenant to cross-examination, but does not identify what
would have resulted from that cross-examination or how it would
have changed the outcome of the case. Defendant alleged his
trial counsel overheard the discussion between the prosecutor
and the lead detective, but tellingly, counsel's certification
does not support that claim and makes no mention of the
incident. The prosecutor's response to the judge's question
12 A-1794-13T2 during Thomas's cross-examination was plainly meant to clarify
his objection, not to offer substantive testimony, and, in any
event, Thomas testified with greater elaboration to the same
substance thereafter.
The court's conclusion that counsel was not ineffective for
failing to request the Clawans charge or to move for the
prosecutor's removal finds ample support in the record.
Defendant next argues his trial counsel was ineffective in
failing to impeach the credibility of Detective Edgar Rios with
evidence that he was transferred out of the homicide unit for
committing several administrative infractions. Defendant also
challenges the PCR judge's denial of his motion to compel
production of the police personnel records necessary to
substantiate those infractions.
A court's determination whether to require disclosure of
such records must depend on a balancing between the public
interest in maintaining their confidentiality and an accused's
constitutional right to confrontation of adverse witnesses at
trial. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div.
1998). A party seeking production for in camera inspection need
not definitively "establish that the personnel file actually
contains relevant information," but must show at least "'some
factual predicate which would make it reasonably likely that the
13 A-1794-13T2 file will bear such fruit and that the quest for its contents is
not merely a desperate grasping at a straw.'" State v.
Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980) (quoting
People v. Gissendanner, 399 N.E.2d 924, 928 (N.Y. 1979)).
Defendant relied on a newspaper article quoting an
unidentified source who stated that twenty-eight administrative
charges had been filed against Rios, including making a false
statement, and that he was being transferred out of the homicide
unit. The article also stated Rios was "long acknowledged as
one of the department's best homicide detectives" and indicated
other officers and detectives were being transferred out of the
homicide unit.
In his written decision, the PCR judge noted that Detective
Rios had very little involvement in this homicide investigation
and his investigative charges had no connection with his work on
this case. Rather, the violations were related to Detective
Rios' failure to notify the family of a homicide victim in an
unrelated case of the status of the investigation.
Defendant includes a copy of the newspaper article
reporting the charges against Rios in his appendix but does not
indicate when that article was published or in what publication
it appeared. Detective Rios testified on July 26, 2007. The
undated article in defendant's appendix was actually published
14 A-1794-13T2 on April 16, 2008, nine months after Rios testified. See Joe
D'Aquila, Half of Homicide Detectives Charged, Transferred in
Wake of Ramsey Case, The Trentonian (April 16, 2008),
http://www.trentonian.com/article/20080416/TMP01/304169956.
Defendant argues trial counsel was ineffective by failing
to attack Rios' credibility "by showing he was issued 28
administrative charges including making a false statement and
transferred out of the homicide unit." Defendant has failed to
show how his trial counsel could have confronted Rios with
administrative charges which were not filed until long after the
trial ended. While we require attorneys to provide effective
assistance to their criminal clients, we do not expect them to
be clairvoyant.
Defendant next claims that trial counsel was ineffective
for failure to object to the State's use of a peremptory
challenge to strike the only African-American from the jury.
A defendant challenging a prosecutor's use of peremptory
challenges must satisfy an initial burden of rebutting the
presumption in favor of the constitutionality of a peremptory
challenge by "'producing evidence sufficient to . . . draw an
inference that discrimination has occurred.'" State v. Osorio,
199 N.J. 486, 502 (2009) (quoting Johnson v. California, 545
U.S. 162, 170, 125 S. Ct. 2410, 2417, 162 L. Ed. 2d 129, 139
15 A-1794-13T2 (2005)). In State v. Watkins, the Court suggested that trial
courts consider the following factors:
(1) that the prosecutor struck most or all of the members of the identified group from the venire; (2) that the prosecutor used a disproportionate number of his or her peremptories against the group; (3) that the prosecutor failed to ask or propose questions to the challenged jurors; (4) that other than their race, the challenged jurors are as heterogeneous as the community as a whole; and (5) that the challenged jurors, unlike the victims, are the same race as defendant.
[114 N.J. 259, 266 (1989).]
However, where a single peremptory challenge used to
"excuse the only qualified member of a cognizable group in the
jury panel," and the defendant or victim belongs to the same
group, the defendant may establish a prima facie case so long as
the rest of the factors of the above standard are met. State v.
Pruitt, 430 N.J. Super. 261, 272 (App. Div. 2013). Once a
defendant establishes a prima facie case, "[t]he burden shifts
to the prosecutor to come forward with evidence that the
peremptory challenges under review are justifiable on the basis
of concerns about situation-specific bias." State v. Gilmore,
103 N.J. 508, 537 (1986). The prosecution must then "articulate
'clear and reasonably specific' explanations of its 'legitimate
reasons' for exercising each of the peremptory challenges."
Ibid. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
16 A-1794-13T2 248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207, 218 (1981)).
The PCR judge determined that defendant's trial counsel had
no basis to raise a Pruitt challenge to the State's use of a
peremptory challenge, as the State presented a "cognizable, non-
discriminatory reason" to challenge the juror, explaining:
The record of the jury selection discloses that Juror 4 had two siblings who had previously been incarcerated for convictions on drug charges. . . . One of her brothers was incarcerated in a federal prison in Pennsylvania, while the other had served time in Mercer County before being transferred to Atlantic County. . . . At the time the State exercised its peremptory challenge excusing Juror 4, there was no indication that she was the last remaining African-American Juror on the panel. . . . Indeed, prior to Juror 4's excusal, the trial court informed both the State and defense counsel that a new jury panel was on its way for voir dire. . . . A new jury panel was, in fact, introduced and voir dire commenced thereafter.
We are satisfied that trial counsel would have been unable
to make a threshold showing that the State exercised its
peremptory challenge in a constitutionally impermissible fashion
sufficient to draw an inference that discrimination had
occurred. Thus, trial counsel's failure to object to the
State's use of this peremptory challenge did not amount to
ineffective assistance.
The remaining arguments raised by defendant in this appeal
lack sufficient merit to warrant further discussion in our
17 A-1794-13T2 opinion. R. 2:11-3(e)(2).
Second PCR Petition
Defendant argues that his second PCR petition, which raised
various claims of ineffective assistance of trial and appellate
counsel should not have been procedurally barred. The PCR judge
found the claims barred by Rule 3:22-4(b). The Rule provides:
A second or subsequent petition for post- conviction relief shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.
[R. 3:22-4(b).]
18 A-1794-13T2 The claims raised by defendant in his second PCR petition
alleging ineffective assistance of trial and appellate counsel
do not fall into any of the three narrow categories permitting
relief. Even if we were to consider his claims, they lack
merit.
Defendant presented two arguments: (1) trial counsel
should have moved to suppress the cell phones recovered at the
scene of the murder and a shirt bearing defendant's DNA
recovered from his residence; and (2) trial counsel should have
moved for dismissal on double jeopardy grounds after the
mistrial, and appellate counsel should have raised that issue on
appeal.
The record clearly establishes that search warrants were
obtained for both the murder scene and defendant's residence.
Defendant's claim that items were seized before the warrants
were actually obtained is not supported by the record.
Defendant next argues that trial counsel was ineffective
for failure to move for dismissal of his indictment on double
jeopardy grounds after the first mistrial, and that appellate
counsel was ineffective for failure to raise the same argument
or order the necessary supporting transcript on appeal.
The mistrial came about after a detective unexpectedly
19 A-1794-13T2 volunteered on cross-examination that co-defendant Karla Freeman
provided investigators with defendant's cell phone number, which
corresponded with the phone that was recovered at the scene of
the crime. Defendant's counsel promptly moved for a mistrial
pursuant to United States v. Bruton, 391 U.S. 123, 126, 88 S.
Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968), on the ground that
he could not cross-examine Freeman, the source of the
incriminating information. On further questioning, the
detective acknowledged that he had never interviewed Freeman and
had no personal knowledge of her incriminating statement. The
court ultimately granted the mistrial.3
Here, defendant's trial counsel moved for the mistrial and
has not alleged before the trial judge, the PCR judge, or us,
that the mistrial was brought about by bad faith on the State's
part. State v. Farmer, 48 N.J. 145, 174 (1966), cert. denied,
386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). A
retrial after a mistrial is permissible if there was "sufficient
legal reason and manifest necessity to terminate the trial,"
State v. Loyal, 164 N.J. 418, 435 (2000), or the defendant
3 Co-defendant, Karla Freeman raised an identical claim of ineffective assistance based on her trial counsel's failure to argue for dismissal based on double jeopardy. Both appeals were calendared together before us and, in separate opinions filed today, we reject both claims. See State v. Freeman, No. A-3386- 14 (App. Div. September 7, 2017).
20 A-1794-13T2 consents to the termination, United States v. Dinitz, 424 U.S.
600, 607, 611, 96 S. Ct. 1075, 1079-81, 47 L. Ed. 2d 267, 274,
276 (1976). Both circumstances were present here.
opinion. R. 2:11-3(e)(2).
Affirmed.
21 A-1794-13T2