NOT FOR PUBLICATION WITHOUT THE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-5052-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES GOULD, a/k/a MISTER
A. YOUNG,
Defendant-Appellant.
__________________________________
Submitted September 11, 2017 – Decided September 15, 2017
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
10-09-2503.
Joseph E. Krakora, Public Defender, attorney
for appellant (Peter B. Meadow, Designated
Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Patrick D. Isbill,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Charles Gould appeals the trial court’s denial of
his petition for post-conviction relief ("PCR") without an
evidentiary hearing. We affirm, except to remand for a slight
correction to the period of parole ineligibility expressed
imprecisely within defendant's judgment of conviction.
As detailed in this court's prior opinion on direct appeal,
this prosecution of defendant arose out of the shooting of a drug
dealer, Brandon Adams, in an alleyway in the City of Camden on the
afternoon of March 30, 2010. See State v. Gould, No. A-2756-11
(App. Div. Sept. 23, 2013).
According to the State's proofs, shortly after Adams sold
drugs to others on the street for cash, defendant accosted him at
gunpoint and demanded the money in his possession. Adams gave
defendant the cash. Still brandishing the gun, defendant commanded
Adams to take him to his remaining stash of drugs. Adams brought
defendant to the alleyway, but they found no drugs stashed there.
At that point, defendant fired his gun multiple times at Adams,
wounding him severely. Adams survived, but he did not identify
his shooter to the police.
The shooting events were observed by three eyewitnesses. Each
of them identified defendant, who was known by the nickname
"Mister," to the police as the man who had attacked and shot Adams.
However, at the May 2011 jury trial, the eyewitnesses recanted,
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causing the State to move their prior inconsistent statements
identifying defendant into evidence pursuant to N.J.R.E.
803(a)(1)(A). In his own case, defendant presented testimony from
Adams, who denied that defendant, a/k/a "Mister," was his attacker.
The State called in rebuttal Adams' mother, who recounted that
Adams had, in fact, told her after the attack that defendant was
the person who had shot him.
The jury found defendant guilty of attempted murder, N.J.S.A.
2C:5-1 and 2C:11-3; robbery, N.J.S.A. 2C:15-1(a)(1); aggravated
assault, N.J.S.A. 2C:12-1(b)(1), (2), (4), and (7); and various
weapons offenses. The judge who presided over the trial, sentenced
defendant to an aggregate twenty-five-year term of incarceration,
subject to what was termed a "nineteen-and-a-half-year" period of
parole ineligibility, pursuant to the No Early Release Act
("NERA"), N.J.S.A. 2C:43-7.2.
On direct appeal, defendant raised the following issues
through his appellate counsel and in a pro se supplemental brief:
POINT I
THE PROSECUTOR'S MISUSE OF TESTIMONIAL
HEARSAY, FROM NON-TESTIFYING ALLEGED
WITNESSES WHO IMPLICATED DEFENDANT DURING THE
POLICE INVESTIGATION, VIOLATED DEFENDANT'S
RIGHT TO CONFRONT WITNESSES AND TO DUE PROCESS
OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND.
XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9,
10.
3 A-5052-14T1
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
PRO SE SUPPLEMENTAL POINT I
THE COURT FAILED TO CONDUCT A WADE1 HEARING
AND TO ACKNOWLEDGE THE VARIOUS DIFFERENT
DESCRIPTIONS OF THE PERPETRATOR GIVEN BY
SEVERAL DIFFERENT WITNESSES AT TRIAL THUS
VIOLATING DEFENDANT[']S DUE PROCESS RIGHTS.
We affirmed defendant's convictions and sentence in our
unpublished opinion on direct appeal. See State v. Gould, supra,
slip op. at 18. The Supreme Court denied defendant's ensuing
petition for certification. See State v. Gould, 217 N.J. 304
(2014).
Thereafter, defendant filed the present PCR petition in June
2014. Defendant argued that his trial counsel was ineffective
because she failed to: (1) move for the trial judge to recuse
himself because of his alleged bias, (2) request Wade hearings on
identification, (3) challenge the trial court's rulings of
admissibility following the Gross2 hearings, (4) raise issues of
prosecutorial misconduct, and (5) investigate, prepare, and
present the case properly.
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
2
State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121
N.J. 1 (1990).
4 A-5052-14T1
Defendant further argued that his counsel on direct appeal
was ineffective, because he allegedly failed to recognize and
appeal significant errors that had occurred at the trial level.
Defendant also asserted that the trial court erred by giving
flawed instructions to the jury, and that prosecutorial misconduct
deprived him of his right to due process.
Oral argument on defendant's PCR petition was heard on May
22, 2015 before Judge Kathleen M. Delaney. After considering that
advocacy and the parties' written submissions, the judge concluded
that defendant's claims for relief were both procedurally and
substantively deficient.
In her oral opinion, Judge Delaney initially noted that
defendant's PCR arguments could have been raised on direct appeal,
and thus were procedurally barred under Rule 3:22-4. According
to the judge, "[t]here [were] no facts outside the record that the
Appellate Division would have needed [in order] to address the
defendant's concerns."
Turning to the merits, Judge Delaney likewise found
defendant's petition unavailing. She concluded that the trial
court did not err in admitting the eyewitnesses' prior inconsistent
statements as substantive proof of guilt, as defendant had
presented "no legal basis to challenge the [trial court’s] rulings
at the Gross [h]earings." Judge Delaney also discerned no evidence
5 A-5052-14T1
of prosecutorial misconduct from the record of the trial. Hence,
the judge found no basis to set aside the conviction on these
asserted grounds.
As to defendant's claims of ineffective assistance of
counsel, Judge Delaney was likewise satisfied that they lacked
merit and no evidentiary hearing was needed to address them. She
noted that "[a] defendant is not entitled to an [e]videntiary
hearing if the allegations in the certification are too vague,
conclusory, or speculative. Defendant does not set forth any
facts to support his claims, and, therefore, defendant's
submission is insufficient to establish a claim of ineffective
assistance of counsel."
Rejecting defendant's argument that his trial counsel should
have moved for the trial judge to recuse himself, Judge Delaney
observed there was "nothing in the record which indicate[d] the
trial [c]ourt was anything but fair and impartial. The defendant
cannot point to a single decision by the [c]ourt that was not
supported by applicable legal standards."
Judge Delaney further concluded that the out-of-court
identifications admitted at trial were "not impermissibly
suggestive," and defendant's trial counsel therefore did not err
in failing to challenge their admission. The judge noted in this
regard that this court had expressly addressed and rejected that
6 A-5052-14T1
very argument in our decision on defendant's direct appeal, in
which we specifically found that the identifications were not
"impermissibly suggestive."
As to the failure to appeal the trial court's rulings from
the Gross hearing, Judge Delaney determined that "defendant ha[d]
not presented any evidence that the [trial] [c]ourt's findings
were misguided or unlawful, and an appeal of the Gross [rulings]
would not have been meritorious."
Lastly, Judge Delaney rejected defendant's assorted
challenges to various other tactical decisions his former counsel
made at trial. She recognized in this regard that "a Court must
indulge a strong presumption that [trial] counsel's conduct falls
within the wide range of reasonable professional assistance[.]"
Applying that presumption, Judge Delaney detected no "acts or
omissions by counsel that were not the result of reasonable,
professional judgment."
In now appealing the denial of his PCR petition, defendant
raises the following issues:
POINT I
THE POST-CONVICTION RELIEF COURT ERRED IN
DENYING DEFENDANT'S PETITION WITHOUT THE
BENEFIT OF AN EVIDENTIARY HEARING
A. DEFENDANT ESTABLISHED A PRIMA FACIE CASE
OF INEFFECTIVE ASSISTANCE OF COUNSEL.
7 A-5052-14T1
B. DEFENDANT ESTABLISHED A PRIMA FACIE CASE
OF INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL.
POINT II
DEFENDANT'S MANDATORY MINIMUM SENTENCE IS
MISCALCULATED AND THEREFOR[E] ILLEGAL AND MUST
BE CORRECTED.
Defendant also makes the following points in a supplemental brief:
SUPPLEMENTAL POINT ONE
THE POST CONVICTION RELIEF COURT ERRED IN
DENYING DEFENDANT'S PETITION IN LIGHT OF THE
FUNDAMENTAL INJUSTICE AND CONSTITUTIONAL
VIOLATIONS PRESENTED THEREIN.
THE COURT ERRED BY GIVING THE JURY
FATALLY FLAWED JURY INSTRUCTIONS
DURING THE JURY CHARGE.
THE COURT ERRED IN FAILING TO GIVE
CURATIVE INSTRUCTIONS REGARDING A
DETECTIVE OFFERING A GRATUITOUS
CERTAINTY OF DEFENDANT'S GUILT.
SUPPLEMENTAL POINT TWO
THE POST CONVICTION RELIEF COURT ERRED IN
DENYING DEFENDANT'S PETITION WITHOUT THE
BENEFIT OF AN EVIDENTIARY HEARING, HAVING
MISCONSTRUED OR IGNORED VITAL FACTS.
THE COURT FAILED TO CONSIDER
COUNSEL'S FAILURE TO REQUEST A WADE
HEARING WHEN CONSIDERING COUNSEL'S
EFFECTIVENESS.
THE COURT IGNORED EVIDENCE IN THE
DEFENDANT'S POSSESSION THAT WOULD
HAVE ENLIGHTENED THE COURT TO AN
ERROR.
8 A-5052-14T1
Having fully considered these arguments, we affirm the
dismissal of defendant's PCR petition, substantially for the sound
reasons articulated in Judge Delaney's May 22, 2015 oral opinion.
We add only a few comments, along with a caveat respecting the
precise calculation of defendant's period of parole ineligibility.
First, we generally endorse the trial court's observation
that defendant's claims are procedurally barred, except with
respect to his discrete claims relating to the alleged deficiencies
of his appellate counsel and the legality of his sentence.
Defendant's present arguments about the evidence admitted against
him and his other claims of trial error could have and should have
been raised in his direct appeal. R. 3:22-4. We disfavor the use
of PCR proceedings as a substitute for direct appeal. State v.
Murray, 315 N.J. Super. 535, 540 (App. Div. 1998).
Moreover, as we have already noted, defendant's specific
argument that the eyewitness identifications were tainted by
unduly suggestive means was rejected on direct appeal. That failed
argument cannot be renewed now through a PCR petition. R. 3:22-
4.
Nor do we detect any merit in the substance of defendant's
arguments. His claims of prosecutorial misconduct and unfairness
are not objectively borne out by the record. As the PCR judge
concluded, defendant received a fair trial. The isolated matters
9 A-5052-14T1
he complains of, including a trooper's brief testimony about his
observations of one eyewitness's physical demeanor when shown a
photo array, do not negate that overall conclusion. There was no
imperative for curative or additional jury instructions under the
circumstances presented. Nor did the prosecutor's questions in
examining witnesses or his remarks in summation exceed the fair
realm of zealous advocacy.
We agree with the trial court that defendant's claims of
ineffective assistance of counsel failed to establish a prima
facie case to warrant an evidentiary hearing. We recognize that
under the Sixth Amendment of the United States Constitution, a
person accused of crimes is guaranteed the effective assistance
of legal counsel in his defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
To establish a deprivation of that right, a convicted defendant
must satisfy the two-part test enunciated in Strickland by
demonstrating that: (1) counsel's performance was deficient, and
(2) the deficient performance actually prejudiced the accused's
defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see
also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-part test in New Jersey).
In reviewing such ineffectiveness claims, courts apply a
strong presumption that defense counsel "rendered adequate
10 A-5052-14T1
assistance and made all significant decisions in the exercise of
reasonable professional judgment." Strickland, supra, 466 U.S.
at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints
'merely of matters of trial strategy' will not serve to ground a
constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at
42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489 (1963),
cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075
(1963), overruled on other grounds by, State v. Czachor, 82 N.J.
392 (1980)).
Moreover, an evidentiary hearing is not necessary unless
defendant establishes a prima facie claim of ineffectiveness.
State v. Preciose, 129 N.J. 451, 462-63 (1992). "[B]ald
assertions" of deficient performance are insufficient to support
a PCR application. State v. Cummings, 321 N.J. Super. 154, 170
(App. Div.) (noting that PCR relief requires more than "bald
assertions" by a defendant), certif. denied, 162 N.J. 199 (1999);
see also R. 3:22-10(b); see also State v. Porter, 216 N.J. 343,
354-55 (2013) (reaffirming these principles).
Without exhaustively addressing defendant's ineffectiveness
claims individually here, we are satisfied that none of them rise
to a level calling for an evidentiary hearing. For example, trial
counsel's decision to call Adams, who denied that defendant was
his attacker, was a reasonable tactical decision within counsel's
11 A-5052-14T1
zone of discretion, despite the rebuttal testimony presented
thereafter from Adams' mother. State v. Arthur, 184 N.J. 307,
320-21 (2005) (noting a court's review of a defense attorney's
decision whether to call a witness should be "highly deferential").
As Judge Delaney aptly noted, "[n]o one had a clear[er] view of
the shooter than the person who was shot[, a]nd while risky,
presenting him [Adams] as a witness was a reasonable decision for
the defense."
We also reject defendant's claim that his conviction should
be set aside because his trial counsel allegedly told him that the
judge had made a negative remark about him off the record before
trial. Even if this hearsay assertion about the judge's utterance
of the negative remark were substantiated, that does not
necessarily mean that a recusal motion would have been successful.
State v. J.J., 397 N.J. Super. 91, 103 (App. Div. 2007) ("although
the trial judge's comments were sometimes stern, they do not reveal
bias or prejudice"), appeal dismissed, 196 N.J. 459 (2008).
Moreover, trial counsel reasonably might have predicted that a
failed recusal motion could have detracted from the force of his
substantive arguments on other issues before the trial court.
Defendant's speculative claims of ineffectiveness are simply
unavailing, as he has not demonstrated a sufficient basis to reject
the PCR judge's assessment that he received an overall fair trial.
12 A-5052-14T1
Regardless of whether counsel was ineffective, defendant has
failed to establish the actual prejudice required under the second
prong of Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693.
The remainder of defendant's claims of ineffectiveness are
similarly unavailing, both with respect to his trial counsel's
performance, and the advocacy of the attorney who represented him
on direct appeal. We need not comment about them further. R.
2:11-3(e)(2).
Lastly, there is one minor need for correction of the sentence
within the judgment of conviction. The parole ineligibility period
mandated by NERA on the first-degree attempted murder conviction
requires defendant to serve a minimum of eighty-five percent of
his seventeen-year custodial sentence on that offense, which is
properly calculated as fourteen years, five months, and eleven
days. See N.J.S.A. 2C:43-7.2. In addition, the law requires
defendant to serve a minimum of five years without parole on his
separate "certain persons" weapons conviction. See N.J.S.A.
2C:39-7(b). The combined effect of these convictions is that
defendant's aggregate period of parole ineligibility is nineteen
years, five months, and eleven days. However, the judgment of
conviction imprecisely states that the aggregate parole
ineligibility term is "19 1/2 years," which overstates the period
13 A-5052-14T1
by about eighteen days. The State does not dispute the correct
calculation. Accordingly, we remand for the entry of a corrected
judgment of conviction to reflect the proper figure.
The denial of the PCR petition is affirmed in all respects,
with the proviso that the trial court enter a corrected judgment
of conviction within forty-five days to reflect the accurate parole
ineligibility period. We do not retain jurisdiction.
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