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APPROVAL OF THE APPELLATE DIVISION
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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.
3 A-0389-15T3
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
4 A-0389-15T3
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.
6 A-0389-15T3
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.
8 A-0389-15T3
STATE OF NEW JERSEY VS. ANTHONY MARTIN(94-01-0133, MIDDLESEX COUNTY AND STATEWIDE)
Combined Opinion