STATE OF NEW JERSEY VS. ANTHONY MARTIN(94-01-0133, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0389-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY MARTIN,

Defendant-Appellant.
_______________________________

Submitted May 8, 2017 – Decided June 12, 2017

Before Judges Nugent and Currier.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 94-01-0133.

Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Bryan S. Tiscia,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief.)

PER CURIAM

Defendant Anthony Martin appeals from the denial of his motion

for a new trial. We affirm.
 Following a jury trial in 1995, defendant was found guilty

of the first-degree crimes of conspiracy to commit murder and

leader of a narcotics trafficking network. He was sentenced to

an aggregate term of life imprisonment subject to a twenty-five

year period of parole ineligibility. We affirmed defendant's

conviction, remanding for sentencing on one of the counts. State

v. Martin, No. A-0001-95 (App. Div.), certif. denied, 153 N.J. 216

(1998). Two subsequent petitions for post-conviction relief were

denied; those orders were affirmed on review by this court. State

v. Martin, No. A-0391-05 (App. Div.), certif. denied, 188 N.J. 490

(2006); State v. Martin, No. A-0349-02 (App. Div.), certif. denied,

180 N.J. 453 (2004).

In 2012, defendant filed a pro se post-conviction relief

petition for a new trial, and he was assigned counsel. Defendant

alleged he had information not previously known to him that a

juror who deliberated at his trial had not been honest with the

court during voir dire when asked whether any family member had

ever been accused of a crime. He further contended that the same

juror had not advised the trial judge that he was familiar with

two of the witnesses whose names were provided to the panel as

potential witnesses.1

1
This argument was found meritless by the trial judge and is not
an issue in this appeal.

2 A-0389-15T3
 The motion judge determined that the juror's failure to

disclose information regarding his family member and her arrest

constituted "a type of jury misconduct that could have deprived

the defendant of his Sixth Amendment right to a trial by an

impartial jury." He, therefore, found an evidentiary hearing was

appropriate, pursuant to Rule 1:16-1, for the court to interview

the juror.

On June 30, 2015, following an evidentiary hearing, Judge

Dennis V. Nieves2 issued a written decision and order finding that

defendant had failed to demonstrate that he would have exercised

a peremptory challenge to exclude the pertinent juror. The motion

for a new trial was denied. A subsequent motion for reconsider-

ation, in which defendant raised for the first time the ineffective

assistance of PCR counsel, was denied on July 28, 2015.

On appeal, defendant presents the following arguments for our

consideration:

POINT I: THE ORDER DENYING DEFENDANT'S POST-
CONVICTION RELIEF MOTION FOR A NEW TRIAL
SHOULD BE REVERSED BECAUSE [THE] JUROR['S]
FAILURE TO DISCLOSE THAT HIS DAUGHTER WAS
CHARGED WITH COMMITTING A DRUG OFFENSE
VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO
A FAIR AND IMPARTIAL JURY THROUGH THE RIGHT
OF PEREMPTORY CHALLENGE.

2
A different judge had reviewed the motion and ordered the
hearing.

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 POINT II: PCR COUNSEL'S FAILURE TO SUBMIT AN
AFFIDAVIT FROM TRIAL COUNSEL STATING THAT HE
WOULD HAVE EXERCISED A PEREMPTORY CHALLENGE,
OR TO PRODUCE TRIAL COUNSEL AS A WITNESS TO
GIVE SUCH TESTIMONY AT THE EVIDENTIARY
HEARING, WAS INEFFECTIVE ASSISTANCE OF
COUNSEL.

Defendant contends that a juror's failure to disclose that

his daughter had been charged with a drug offense violated his

Sixth Amendment right to a fair trial. We disagree.

In reviewing a trial judge's decision on a motion for new

trial, we will not reverse it "unless it clearly appears that

there was a miscarriage of justice." Rule 2:10-1; State v.

Gaikwad, 349 N.J. Super. 62, 82 (App. Div. 2002).

A defendant may be regarded as having been denied a fair

trial when a juror fails to disclose potentially prejudicial

information during voir dire. State v. Cooper, 151 N.J. 326, 349

(1997). Although there may not be any "actual or provable

prejudice" to defendant, the potential for the denial of a fair

trial arises because of defendant's lost opportunity to exercise

a peremptory challenge to excuse the juror in an attempt to achieve

an impartial jury. Ibid. A defendant need not show prejudice but

is required to demonstrate that "had he or she known of the omitted

information, he or she would have exercised a peremptory challenge

to exclude the juror." Ibid. If the proof that a challenge would

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have been exercised is lacking, the Court has found the voir dire

omission to be "harmless." Id. at 350.

The newly discovered evidence provided to the court in support

of the motion for a new trial was presented in an affidavit from

a then-incarcerated inmate. The inmate stated that he had known

the juror's family for his whole life, and that the juror had a

daughter who had a drug problem "before and around" the time of

defendant's trial. The affiant further stated that he had

witnessed the juror's attempts to "sway [his daughter] off drugs."

In his analysis, Judge Nieves noted that even if the juror's

daughter was an addict, the juror had no duty to reveal the

information because "[t]he jurors were not asked if they or any

member of their family had a history of drug abuse." The juror

was asked if he or any member of his family had been accused of

committing a crime, and he gave no response.

Defendant presented a printout from the court system as part

of his proofs showing that the juror's daughter had been charged

and acquitted of a drug charge. When queried by the court on this

information, the juror responded that he had no knowledge that his

daughter had been arrested for drug use. Although he admitted

that she had a drug problem, he stated that he was only aware of

one instance when his daughter was questioned by law enforcement;

5 A-0389-15T3
she was subsequently released. He stated he did not know that she

had ever been arrested or prosecuted.

The judge concluded that even if the juror had known of his

daughter's arrest and divulged the information, there was no

indication that defendant would have exercised a peremptory

challenge. Judge Nieves referred to another juror who had answered

affirmatively to the same question but was not stricken from the

panel. Therefore, the judge concluded that defendant had failed

to demonstrate that he would have exercised a peremptory challenge

to exclude the juror if he had disclosed the information regarding

his daughter's arrest.

We are satisfied that the judge properly conducted the

interview of the juror and considered his testimony that he had

no knowledge of his daughter's arrest. His conclusion that

defendant failed to show he would have exercised a peremptory

challenge on this juror is supported by the credible evidence in

the record.

We briefly address defendant's argument that his PCR counsel

was constitutionally ineffective in her failure to procure an

affidavit from trial counsel affirming that he would have used a

peremptory challenge to strike the offending juror from the jury

panel.

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 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.

In turning to defendant's argument, we are satisfied from our

review of the record that defendant failed to meet his burden of

proof as to a showing of ineffectiveness of trial counsel within

the Strickland-Fritz test. Defendant has not presented any

evidence such as an affidavit or certification to support his

argument that trial counsel would have exercised a peremptory

challenge had he been aware of the juror's family history. As we

have previously stated, "bald assertions" that a defendant was

7 A-0389-15T3
denied the effective assistance of counsel are not sufficient to

establish a prima facie claim. State v. Cummings, 321 N.J. Super.

154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

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