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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. RONALD WILLIAMS, Defendant–Appellant.

DOCKET NO. A–2176–11T4

    Decided: March 12, 2014

Before Judges Espinosa and Koblitz.Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing.   We affirm.

Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15–1;  aggravated assault, N.J.S.A. 2C:12–1(b)(2);  possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a);  possession of a weapon without a permit, N.J.S.A. 2C:39–5(b);  receiving stolen property, N.J.S.A. 2C:20–7;  and joyriding, N.J.S.A. 2C:20–10(d).  Defendant then entered a guilty plea to a separate indictment that charged him with certain persons not to have weapons, N.J.S.A. 2C:39–7(b).  He was sentenced to an aggregate term of thirty years, six months, with an eighty-five percent parole disqualifier applicable to two of the terms imposed.

Defendant filed a direct appeal challenging the identification evidence, the court's denial of his request for a cross-racial identification charge, comments made by the prosecutor in summation, and the sentence.   In an unpublished opinion, State v. Williams, No. A–1083–05 (App.Div. Jan. 22, 2008), certif. denied, 196 N.J. 595 (2008), we affirmed his conviction but remanded for resentencing pursuant to State v. Pierce, 188 N.J. 155 (2006), which was decided after defendant was sentenced.   Thereafter, defendant was re-sentenced to the original sentence.   A notice of appeal was filed but later dismissed based upon a notice of withdrawal signed by defendant.

Defendant filed a motion for a new trial along with his petition for PCR in December 2009.   The PCR judge, who had presided over defendant's trial, denied the petition.

The facts underlying defendant's convictions, which arose from the armed robbery of a gas station on September 3, 2003, are set forth in our opinion on his direct appeal and need not be repeated at length here.   Four people were in a car that drove to a parking lot near the gas station:  defendant, As'samad Rosebrough, Demetrice Love, and Yahna Padgett.   Two of the four left the car to commit the robbery.   The victim identified defendant in a show-up shortly after the robbery.

Rosebrough submitted an affidavit, dated January 13, 2004, in which he exonerated Love and Padgett and said regarding defendant, “I take FULL liability for Conduct of Another.   Henceforth being told by RONALD WILLIAMS to go into gas attendants pants pocket.   While he (Ronald Williams) held him at gun point.”

Rosebrough pled guilty to first-degree robbery pursuant to a plea agreement in January 2004.   As part of the plea agreement, he was required to give truthful testimony in defendant's trial.

However, in August 2004, Rosebrough provided a “letter to support affidavit” in which he contradicted himself, stating defendant had no knowledge or involvement in the armed robbery and that the second person involved in the robbery with him was Love and not Williams.   He also stated that Williams was not even in the car when the robbery occurred and that they picked him up after the robbery.

At the joint trial, conducted in June 2005, Rosebrough did not testify.   Defendant testified he was in the car on the night of the robbery and remained there while Love and Rosebrough left to commit the robbery.   He claimed he was unaware a robbery had taken place and had not seen a mask or weapon in the vehicle.

In January 2007, Rosebrough provided another affidavit that appears to be directed to defendant, indicating defendant was unaware of Rosebrough's prior affidavit exonerating him, which the prosecutor ignored.   Rosebrough then provided a certification in which he stated he tried to convince the prosecutor prior to trial that defendant was not guilty and that he was willing to testify to that fact.   He stated that a plea offer was revoked when the prosecutor learned he planned to testify for the defense, but also stated that he would get the same sentence promised in the plea offer if he went to trial and did not testify for defendant.

In his appeal from the denial of his PCR petition, defendant argues that the PCR judge erred in denying his petition without an evidentiary hearing and that his trial counsel was ineffective in failing to request a severance that would have permitted him to present exculpatory testimony from his co-defendant.   According to defendant, his co-defendant wanted to testify on his behalf but would only do so if their trials were severed.

Defendant filed a supplemental pro se brief in which he expanded upon the argument raised by counsel and presented two additional arguments.   As his first argument, he contends that the trial court erred in denying him a hearing to determine what evidence was presented to the grand jury.   He states that, following his indictment on May 25, 2004, co-defendant Rosebrough recanted and he requested a review of the grand jury transcripts to determine whether a motion to dismiss the indictment was necessary.   This argument lacks merit.   After an indictment has been returned, courts will intervene “only on the ‘clearest and plainest ground,’ and ‘only when the indictment is manifestly deficient or palpably defective.’ ”  State v. Hogan, 336 N.J.Super. 319, 339 (App.Div.2001), certif. denied, 167 N.J. 635 (2001).   Such grounds do not exist here.   In addition, he argues that he was denied due process because the prosecutor “refused” to have a ski mask seized at the time of his arrest examined for DNA analysis and that “the DNA evidence on the ski mask was destroyed.”   In support of this argument, defendant cites only one letter from the assistant prosecutor in which the inquiry regarding DNA analysis of the mask is addressed as follows:

You also asked if the ski mask was ever examined for DNA analysis.   I do not have any documentation that indicates that it was.   I believe that it was not submitted for DNA analysis.

Because defendant has cited no other evidence to support his suggested allegation that DNA evidence was wrongfully destroyed by the prosecution, his argument lacks the necessary evidentiary support to merit our consideration.   See R. 3:22–10(c).

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L. Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987).   In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that:  (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution;  and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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 687, 694, l04 S.Ct. at 2064, 2068, 80 L. Ed.2d at 693, 698.   The record fails to show that the alleged ineffectiveness in failing to make a severance motion was of any import in this case.

A severance motion would have been governed by State v. Sanchez, 143 N.J. 273 (1996), where the Court set forth the “the standard by which trial courts should evaluate motions for severance based on the claim that one codefendant will exculpate another if the two are not tried together.”  Id. at 277.   That standard requires severance

if the court is reasonably certain that (1) the defendant will call his codefendant as a witness in a separate trial;  (2) the codefendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his own trial;  and (3) the codefendant's proffered testimony will be credible and substantially exculpatory.

[Id. at 293.]

Assuming the first two of these prongs were satisfied, there is a fundamental problem with the credibility of Rosebrough's recantation.   The version of events he provided to exculpate defendant was that defendant was not even present in the car at the time of the robbery and that he picked defendant up after the robbery.   But, in his testimony at trial, defendant admitted that he was in the car while the robbery was committed.   Rosebrough's “exculpatory” statement also conflicted with the testimony of the police officer who was able to follow the car used by the robbers immediately afterward.

In denying the petition, the PCR judge, who also presided over the trial, stated he had “never seen a witness more thoroughly debunked than the defendant.”   He found that, even if a severance motion had been filed, it would not have been granted because defendant was unable to satisfy the final prong of Sanchez, which requires reasonable certainty that the proffered testimony will be both credible and exculpatory.   He found further that, even with the proffered testimony, defendant would have been convicted because the evidence against him was overwhelming.   We agree.   Therefore, since defendant failed to present prima facie evidence of ineffective assistance of counsel, no evidentiary hearing was required.   See State v. Preciose, 129 N.J. 451, 462–63 (1992).



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