STATE OF NEW JERSEY VS. TROY LONE (10-12-3446, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 6, 2018
• Docket: A-1074-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1074-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY LONE a/k/a TROY LONE, JR., DYMIERE DEMBY, and TERRY LONE,

Defendant-Appellant. _______________________________

Submitted November 26, 2018 – Decided December 6, 2018

Before Judges Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-12-3446.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison S. Perrone, Designated Counsel; William Welaj, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Troy Lone appeals from a June 16, 2017 order denying his

petition for post-conviction relief ("PCR") without an evidentiary hearing. We

affirm.

We summarize the relevant procedural history and facts from the record

before us. On September 28, 2010, Mr. Ruiz was employed as a taxicab driver

for Five Star Cab Service in Camden. At 2:00 a.m., Ruiz drove to a gas station

at the corner of Kaighns Avenue and Mt. Ephraim Avenue in Camden. Ruiz

was accompanied by a friend, Mr. Caban. Ruiz pulled up to a gas pump, exited

the cab, and went inside the gas station office to prepay for his purchase of gas.

Meanwhile, Caban exited the cab and stood near its trunk waiting for Ruiz to

return.

After Ruiz paid for gas, he came back outside and began pumping gas into

the cab when a white Ford Taurus pulled up to another gas pump. A man exited

the car and went into the gas station office while a woman remained in the car.

The man returned from the office and began arguing with Caban. As the

argument escalated, the man and Caban "got face to face," and Ruiz started to

walk over to break up the argument. As Ruiz walked over, the man pulled out

a gun. When Caban saw the gun, he put his hands up and began to back away.

The man then put the gun against Ruiz's stomach, walked Ruiz towards the rear

A-1074-17T3 2 of the cab, and went through his pockets. The man took Ruiz's cell phone and

wallet, which contained eighty dollars cash, and then told him to remove his

earrings. As Ruiz was unscrewing his earrings, Caban "took off and ran."

Ruiz then heard Caban screaming "hey, over there, over there." Caban

was seeking to get the attention of a Camden police cruiser he noticed driving

by the gas station. He flagged down the vehicle, driven by Officer Gregory

Young, and told him someone in the white Taurus had a gun. Young looked

about fifty yards away under the bright lights of the gas station, seeing a man,

later identified as defendant, talking to Ruiz. After defendant noticed Young,

he got in the passenger seat of the Taurus. The Taurus then drove out of the gas

station with Young's cruiser in pursuit with its lights and sirens activated.

Young never lost sight of the Taurus as he pursued it and called for back-up.

The Taurus stopped two blocks down the street. Young drove his vehicle to the

Taurus. He got out the vehicle, pulled his gun out, and pointed it at the driver's

side door of the Taurus. The driver and defendant remained in the car until

police assistance arrived.

After eight additional police units arrived at the scene, "felony car stop"

procedures were implemented. The driver and defendant were removed from

the vehicle and handcuffed. Defendant was the same man Young saw enter the

A-1074-17T3 3 Taurus at the gas station. Young searched the Taurus and found two cell phones,

one on the front seat and another on the back seat, as well as a jacket and black

wool masks on the back seat. Eighty dollars in cash was found in a storage

compartment beneath the radio. Young did not find a gun inside the car.

However, the police conducted a search of the two block route from the gas

station to where the Taurus pulled over, and found a gun lying in a grassy area

about three feet away from a sidewalk on the north side of Kaighns Avenue.

Subsequently, the police brought Ruiz to where the Taurus was stopped

and defendant was being held under arrest. The police removed defendant from

the police car and asked Ruiz if he was the person who robbed him. Ruiz

answered affirmatively.

On December 20, 2010, a Camden County grand jury indicted defendant

on two charges of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (counts

one and two); second-degree possession of a handgun for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b) (count four); two charges of fourth-degree

aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (counts five and six);

and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b)

A-1074-17T3 4 (count seven). Prior to trial, on April 30, 2012, the trial judge dismissed counts

two and five (relating to Caban) upon the State's motion.

A jury trial was held between May 2 and 4, 2012 before Judge Gwendolyn

Blue. At trial, the State presented seven witnesses, including Officer Johnson

and Ruiz. During his testimony, Officer Johnson identified defendant as the

male passenger in the Taurus. During his testimony, Ruiz acknowledged he was

subpoenaed to testify and was conveyed to court by the prosecutor's

investigative officers. Ruiz did not provide an in-court identification of

defendant as the person who robbed him, testifying: "To be honest, it's been

almost two years, so I can't even say yes." Instead, the State relied upon the

identification Ruiz made of defendant at the scene when defendant was arrested.

Defendant did not testify or present any witnesses.

In his summation, defense counsel argued that the State had failed to prove

that the firearm recovered belonged to defendant and that defendant had taken

money from Ruiz. He also attacked Ruiz's credibility, arguing that the only

truthful testimony he provided was that he could not identify defendant in court

as the person involved in the robbery.

The jury returned a verdict finding defendant guilty of counts one, three,

four, and six. Count seven was dismissed by the State following the verdict. On

A-1074-17T3 5 July 20, 2012, the trial court granted the State' s motion to impose a discretionary

extended term sentence, pursuant to N.J.S.A. 2C:44-3(a), and imposed an

aggregate term of thirty years' imprisonment subject to eighty-five percent

parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43 -

7.2(c).

On September 8, 2014, this court affirmed defendant's convictions and

sentence. State v. Lone, A-1074-17T3 (App. Div. Sep. 8, 2014). On March 18,

2015, the New Jersey Supreme Court denied defendant's petition for

certification. State v. Lone, 221 N.J. 219 (2015).

On June 9, 2015, defendant filed a pro se PCR petition. Defendant

thereafter filed an amended PCR petition, supplemented with PCR counsel's

brief and a certification by defendant. After considering the amended petition

without an evidentiary hearing, Judge Blue rendered an oral decision denying

the petition on June 16, 2017. On appeal of the denial of PCR, defendant raises

the following points for our review:

POINT I: THE POST-CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

A-1074-17T3 6 A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO UTILIZE TWO WITNESSES AT TRIAL WHO COULD HAVE PRESENTED RELEVANT AND POTENTIALLY EXCULPATORY TESTIMONY ON THE DEFENDANT'S BEHALF.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO FILE VARIOUS MOTIONS ON THE DEFENDANT'S BEHALF.

1. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PURSUE A MOTION TO EXCLUDE THE ELICITATION OF PREJUDICIAL AND DAMAGING TESTIMONY BY THE STATE PURSUANT TO N.J.R.E. 404 (b).

2. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO MAKE A MOTION SEEKING TO PRECLUDE THE SHOW-UP IDENTIFICATION PROCEDURE UTILIZED BY LAW ENFORCEMENT AT THE SCENE.

3. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM

A-1074-17T3 7 TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO MAKE A MOTION TO DISMISS CHARGES BASED UPON LAW ENFORCEMENT'S FAILURE TO PRESERVE CRITICAL EVIDENCE WHICH WAS POTENTIALLY EXCULPATORY TO THE DEFENSE.

D. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HIS FAILURE TO THOROUGHLY DISCUSS WITH HIS CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, AS A RESULT OF WHICH HE DID NOT TESTIFY IN HIS OWN DEFENSE.

E. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CONDUCT AN EFFECTIVE CROSS EXAMINATION OF THE ALLEGED VICTIM.

F. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CONVEY TO THE DEFENDANT RELEVANT PLEA OFFERS PRIOR TO TRIAL.

Having considered the record in light of the applicable legal principles,

we find no merit in defendant's arguments. We affirm for substantially the sound

reasons expressed in Judge Blue's oral opinion. We add only the following

comments.

In cases where the PCR court does not conduct an evidentiary hearing, we

review the PCR judge's legal and factual determinations de novo. State v.

A-1074-17T3 8 Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (citation omitted). A PCR

petitioner faces the burden to establish the grounds for relief by a preponderance

of the credible evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citations

omitted). To establish an ineffective-assistance-of-counsel claim, a convicted

defendant must demonstrate: (1) counsel's performance was deficient, and (2)

the deficient performance actually prejudiced the accused's defense. Strickland

v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42,

58 (1987) (adopting two-part Strickland test in New Jersey).

We first turn to defendant's argument that trial counsel was ineffective for

failing to call two witnesses who may have presented exculpatory evidence.

First, he contends that trial counsel should have called the driver of the Taurus,

citing to an investigation report dated March 12, 2011 from an investigator for

trial counsel. According to the report, the driver told the investigator that she

observed an argument and physical altercation between defendant and two

Hispanic males from her car at the gas station, but defendant did not have extra

items when he returned to the car and never had a firearm. Second, defendant

contends that trial counsel should have called a man who was allegedly present

at the gas station at the time of the robbery. In a handwritten signed statement,

the man states that he was present at the gas station during the time of the alleged

A-1074-17T3 9 incident and "did not see [defendant] commit any type of robbery."

Additionally, in support of his PCR petition, defendant certified that he expected

trial counsel to call the driver of the Taurus, that the driver was present every

day at trial, and that he believed trial counsel would admit the cell phones as

evidence at trial to prove they belonged to defendant and the driver.

We agree with the PCR court that trial counsel was not ineffective for

failing to call these witnesses. In evaluating the first Strickland prong, a court

presumes counsel exercised reasonable judgment in trial strategy. See

Strickland, 466 U.S. at 689. "[L]ike other aspects of trial representation, a

defense attorney's decision concerning which witnesses to call to the stand is 'an

art,' . . . and a court's review of such a decision should be 'highly deferential[.]'"

State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466 U.S. at 683,

689). Additionally, a PCR petitioner asserting that his trial attorney

inadequately investigated a potential witness "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." Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999)).

A-1074-17T3 10 In this case, defendant does not submit sworn affidavits from either of the

potential witnesses to support that they would have testified favorably to

defendant. Compare Porter, 216 N.J. at 350, 56-57 (holding that PCR petitioner

was entitled to evidentiary hearing where he submitted an affidavit from a

potential albi witness stating that she was with defendant at the time of the crime

and had informed trial counsel that she wished to testify), with Cummings, 321

N.J. Super. 154, 171 (App. Div. 1999) (holding that PCR petitioner was not

entitled to evidentiary hearing where he failed to submit affidavit from potential

alibi witness). Additionally, although the driver was present during the trial, 1

defendant presents no evidence that the man who was at the gas station was

available and willing to testify at trial. See Arthur, 184 N.J. at 326 ("[T]here is

no evidence that [potential witness] was even available to testify at the time of

defendant's trial and thus no foundation for concluding that the failure to call

her constituted ineffective assistance of counsel.").

Moreover, as noted by the PCR court, the driver's credibility may have

been suspect because she was with defendant at the time of the robbery, drove

away from the scene with the defendant, and was arrested on an outstanding

1 During the trial, the court noted on the record that the driver was present outside the courtroom, but was sequestered as a potential witness. A-1074-17T3 11 warrant once the police pulled over her vehicle. Considering the risks in having

the driver testify, as well as the lack of support in the record that the proposed

witnesses would have testified consistently with their previous statements,

defendant fails to present adequate evidence to support a prima facie claim that

trial counsel was ineffective or that he suffered any prejudice as a result of the

failure to call these witnesses. See id. at 322 (upholding denial of PCR where

"there was reasonable basis for defense counsel's strategic decision not to call

[potential witness] as a defense witness because his testimony was more likely

to harm than to help defendant's case").

We next turn to defendant's arguments that his attorney was ineffective by

failing to file a motion in limine to preclude any testimony about the two black

wool masks recovered from the Taurus, failing to request a Wade2 hearing to

exclude Ruiz's out-of-court identification of defendant, and failing to file a

motion to dismiss the indictment because the State failed to preserve the

cellphones recovered by the police. To sustain a claim that trial counsel was

ineffective by failing to file a motion, a defendant must demonstrate that the

motion would have been meritorious. See State v. O'Neal, 190 N.J. 601, 619

(2007) ("It is not ineffective assistance of counsel for defense counsel not to file

2 United States v. Wade, 388 U.S. 218 (1967). A-1074-17T3 12 a meritless motion."). We agree with the sound analysis of the PCR court that

none of the motions proposed by defendant would have been meritorious. 3

Therefore, trial counsel was not ineffective for failing to file these motions.

Finally, we briefly address defendant's remaining arguments. We reject

defendant's argument that trial counsel failed to adequately discuss his right to

testify. After the trial court gave defendant an opportunity to confer with trial

counsel off the record, defendant waived his right to testify on the record.

Additionally, the trial court also conducted an extensive voir dire of defendant

regarding his right to testify. See State v. Ball, 381 N.J. Super. 545, 557 (App.

Div. 2005) (holding that defendant's case not prejudiced because "regardless of

whether defendant was advised by counsel, the trial judge fully explained

defendant's right to testify, the possible consequences of his choice and the

option to have the jury instructed to draw no inference from defendant's choice

not to testify").

We also reject defendant's argument that his trial counsel conducted an

ineffective cross-examination of Ruiz, specifically by failing to impeach the

3 We note that the PCR court initially addressed whether a motion to suppress the masks as unlawfully seized should have been filed, but supplemented the record to include a ruling on whether testimony regarding that masks should have been excluded as unduly prejudicial under N.J.R.E. 403 and N.J.R.E. 404(b). A-1074-17T3 13 credibility of Ruiz with prior convictions. We agree with the PCR court that

trial counsel's cross-examination of Ruiz constituted sound trial strategy, as trial

counsel may not have impeached Ruiz with the prior convictions so that Ruiz

was credible when he stated that he could not identify the defendant in court .

Moreover, trial counsel did cross-examine Ruiz about inconsistencies in his

testimony about the amount of money that was taken from him and whether he

had seen the handgun that police had recovered.

We also reject defendant's arguments that trial counsel failed to inform

him of plea offers given by the State and gave him constitutionally ineffective

advice about whether to accept a plea offer. When raising an ineffective-

assistance-of-counsel claim based on an attorney's failure to recommend

accepting a plea offer, a defendant must show that but for the ineffective advice

of counsel, he would have accepted the plea offer and received a lesser sentence

than he received after trial. See Lafler v. Cooper, 566 U.S. 156, 163-64 (2012).

We agree with the PCR court that the record does not support that trial counsel

failed to convey any plea offers or that defendant suffered any prejudice as a

result of trial counsel's advice regarding plea offers.

The PCR judge did not misapply her discretion in denying an evidentiary

hearing, as defendant failed to establish a prima facie basis for relief. See State

A-1074-17T3 14 v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted) ("If the court perceives

that holding an evidentiary hearing will not aid the court's analysis of whether

the defendant is entitled to post-conviction relief, . . . then an evidentiary hearing

need not be granted."). To the extent that we have not specifically addressed

any issues raised by defendant, we find they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1074-17T3 15