STATE OF NEW JERSEY VS. PIERRE A. DENEUS(10-06-1382, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3133-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PIERRE A. DENEUS, a/k/a HARRY
JEAN-PIERRE,

Defendant-Appellant.

____________________________

Submitted April 26, 2017 – Decided June 21, 2017

Before Judges Gooden Brown and Farrington.

On appeal from the Superior Court
of New Jersey, Law Division,
Essex County, Indictment No. 10-06-1382.

Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated Counsel,
on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor,
attorney for respondent (Frank J. Ducoat, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM
 Defendant Pierre Deneus appeals from the February 8, 2016

order of the trial court denying his post-conviction relief (PCR)

petition on the papers without an evidentiary hearing. We affirm.

We glean the following facts from the record. Following a

jury trial, defendant was convicted on February 22, 2011, of second

degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and related charges. He

was sentenced on September 26, 2011, to an aggregate term of

twenty-six years with a fifteen-year parole disqualifier subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The

charges stemmed from defendant's abduction of a thirteen-year-old

girl off the street, after which defendant drove her to his home,

offered her money for sex, and attempted to have sex with her

before she was able to escape. During defendant's incarceration

awaiting trial, he offered a fellow inmate $5000 to kill several

witnesses, including the victim, her mother, and defendant's

roommate. Defendant testified at trial, denying all the charges

and offering alternative explanations.

On March 24, 2014, this court affirmed defendant's conviction

on direct appeal, but "remanded for re-sentencing on counts ten,

eleven, twelve and thirteen, and for consideration of defendant's

arguments as to the sufficiency of the evidence supporting

defendant's conviction for second-degree witness tampering on

count ten." State v. Pierre Deneus, A-3698-11 (App. Div. March

2 A-3133-15T2
24, 2014), slip. op. at 24. Our Supreme Court denied defendant's

petition for certification. State v. Deneus, 220 N.J. 40 (2014).

Defendant was re-sentenced on May 23, 2016, to an aggregate

fifteen-year term subject to NERA.

Defendant filed a pro se petition for PCR on November 5,

2014. With the help of assigned counsel, he later filed an amended

PCR petition on March 13, 2015. Defendant's petition alleged that

both trial counsel and appellate counsel were ineffective for

failing to pursue an intoxication defense, for not raising the

issue of mistaken identification, and for not attempting to locate

surveillance cameras on the street where the kidnapping occurred.

In addition, defendant argued that his constitutional rights were

violated because the police illegally wiretapped his phone,

entrapped him, and because the prosecutor committed misconduct at

trial.

Oral argument was held before Judge Richard T. Sules on August

7, 2015. On February 8, 2016, Judge Sules issued a written

decision and order denying PCR without an evidentiary hearing. In

his decision, Judge Sules found defendant had failed to set forth

a prima facie case of ineffective assistance of counsel, noting

there was no evidence of intoxication, no evidence that defendant

and the victim were of different races to support a claim of cross-

racial misidentification, and no evidence surveillance cameras

3 A-3133-15T2
existed on 18th Avenue, in defendant’s home, or in the Essex County

Jail.

Judge Sules found trial counsel could have reasonably chosen

not to pursue an intoxication defense and "[[t]he trial court]

will not second guess trial counsel's strategy." As to the claim

that trial counsel was ineffective for failing to raise the issue

of cross-racial identification, Judge Sules found that defendant

"failed to substantiate any claim that he and the victim were of

different races."

Regarding the issue of locating surveillance cameras, Judge

Sules rejected defendant's argument that trial counsel was

ineffective for failing to locate cameras on 18th Avenue that

petitioner claims would have filmed his initial interaction with

the victim because "[d]efendant [does] not argue how any

surveillance video, if any even existed, would have introduced

reasonable doubt into his case." Judge Sules further noted

defendant raised this issue with appellate counsel, but defendant

did not specify where a camera that captured the incident could

be found, nor how any footage might help his case. Defendant

simply stated that the footage would "deplict [sic] contrary to

what's alleged by the victim." Appellate counsel asked for

clarification on "what [defendant] meant by the cameras," which

defendant did not provide.

4 A-3133-15T2
 Judge Sules also found there was no evidence of wiretapping

in the case, nor was there any evidence of entrapment. Finally,

Judge Sules noted no evidence of prosecutorial misconduct,

specifically, no evidence that the trial prosecutor participated

in either wiretapping or entrapment.

On April 5, 2016, defendant filed a notice of appeal

of Judge Sules' February 8, 2016, denial of PCR. On

appeal, defendant abandons his claims as to wiretapping,

entrapment, and prosecutorial misconduct, and raises the

following contention:

POINT I

THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING ON MR. DENEUS'S CLAIM THAT
TRIAL AND APPELLATE COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL.

We review the PCR court's findings of fact under a clear

error standard and conclusions of law under a de novo standard.

See State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied,

545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However,

where, as in this case, "no evidentiary hearing has been held, we

'may exercise de novo review over the factual inferences drawn

from the documentary record by the [PCR judge].'" State v. Reevey,

417 N.J. Super. 134, 146-47 (App. Div. 2010) (quoting Harris,

5 A-3133-15T2
supra, 181 N.J. at 421), certif. denied, 206 N.J. 64 (2011)

(alteration in original).

"Post-conviction relief is New Jersey's analogue to the

federal writ of habeas corpus." State v. Preciose, 129 N.J. 451,

459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled

to post-conviction relief if there was a "substantial denial in

the conviction proceedings" of defendant's rights under the

Constitution of the United States or the Constitution or laws of

the State of New Jersey. Preciose, supra, 129 N.J. at 459

(citations omitted). "A petitioner must establish the right to

such relief by a preponderance of the credible evidence." Ibid.

"To sustain that burden, specific facts" that "provide the court

with an adequate basis on which to rest its decision" must be

articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). It is,

therefore, only necessary for us to review the facts and legal

principles that pertain to this issue.

The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

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

Rather, trial courts should grant evidentiary hearings only if the

defendant has presented a prima facie claim of ineffective

assistance, material issues of disputed fact lie outside the

record, and resolution of the issues necessitate a hearing. R.

6 A-3133-15T2
3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). "Rule

3:22-10 recognizes judicial discretion to conduct such hearings."

State v. Preciose, supra, 129 N.J. at 462.

A PCR court deciding whether to grant an evidentiary hearing

"should view the facts in the light most favorable to a defendant

to determine whether a defendant has established a prima facie

claim." Id. at 462-63. "To establish a prima facie claim of

ineffective assistance of counsel, a defendant must demonstrate

the reasonable likelihood of succeeding under the test set forth

in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,

2068, 80 L. Ed. 2d 674,698 (1984), and United States v. Cronic,

466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which [our

Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987)."

Id. at 463.

Under the Strickland standard, a petitioner must show

counsel's performance was both deficient and prejudicial. State

v. Martini, 160 N.J. 248, 264 (1999). The performance of counsel

is "deficient" if it falls "below an objective standard of

reasonableness" measured by "prevailing professional norms."

Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064-65, 80

L. Ed. 2d at 693-94. "This requires showing that counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Fritz, supra,

7 A-3133-15T2
105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, "the defendant must

show that the deficient performance prejudiced the defense." Ibid.

"This requires showing that counsel's errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is

reliable." Ibid. "Unless a defendant makes both showings, it

cannot be said that the conviction . . . resulted from a breakdown

in the adversary process that renders the result unreliable."

Ibid.

In determining whether defense counsel's representation was

deficient "'[j]udicial scrutiny must be highly deferential,' and

must avoid viewing the performance under the 'distorting effects

of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting

Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed.

2d at 694). Because of the inherent difficulties in evaluating a

defense counsel's tactical decisions from his or her perspective

during trial, "a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

'might be considered sound trial strategy.'" Strickland, supra,

466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95 (quoting

8 A-3133-15T2
Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L.

Ed. 83, 93 (1955)).

In determining whether defense counsel's alleged deficient

performance prejudiced the defense, "[i]t is not enough for the

defendant to show that the errors had some conceivable effect on

the outcome of the proceeding." Id. at 693 104 S. Ct. at 2067,

80 L. Ed. 2d at 697. Rather, defendant bears the burden of showing

that "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698; see also Harris, supra,

181 N.J. at 432.

Judged by these standards, we are convinced that defendant

failed to make a prima facie showing of ineffective assistance of

trial counsel within the Strickland/Fritz test warranting an

evidentiary hearing. There is no basis for concluding that trial

or appellate counsel's performance was deficient. We agree with

the PCR court that trial counsel's conduct falls within the wide

range of reasonable professional assistance. We further agree

with the PCR court that defendant failed to put forth any factual

basis for his contentions regarding his appellate counsel's

performance. Defendant has failed to articulate a "[s]ubstantial

9 A-3133-15T2
denial in the conviction proceedings" of his rights under the

Constitution of the United States or the Constitution or laws of

the State of New Jersey. State v. Preciose 129 N.J. 451, 459

(1992).

Affirmed.

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