NOT FOR PUBLICATION WITHOUT THE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-4085-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DENNIS KERRIGAN,
Defendant-Appellant.
____________________________
Submitted October 3, 2017 – Decided October 31, 2017
Before Judges Reisner and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 08-02-0187.
Joseph E. Krakora, Public Defender, attorney
for appellant (Adam W. Toraya, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Timothy Francis
Trainor, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Dennis Kerrigan appeals from a March 22, 2016 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm substantially for the reasons
explained by Judge Timothy P. Lydon in his thorough written
opinion.
I.
Defendant lived in a townhouse complex. In 2010, a jury
convicted him of fourth-degree stalking of the manager of the
complex, N.J.S.A. 2C:12-10(b). He was sentenced to two years of
probation.
At trial, the State presented testimony from three witnesses:
the complex's manager, another resident of the townhouse complex,
and a police officer. In short, the witnesses testified that the
defendant often attended association meetings and often became
loud and disruptive at those meetings. The witnesses also
testified that defendant had confronted the manager on several
occasions and had acted aggressively towards her. The manager and
resident testified that defendant was seen staring at the manager
on numerous occasions and that he often parked his vehicle in the
parking lot next to her office and would sit and stare at her
office. Indeed, the manager logged over fifty instances where
defendant acted aggressively towards her and others, the majority
of which he either confronted or watched her.
On a particular occasion, defendant drove his van into the
parking lot next to the manager's office, parked, and stared at
the manager's office. When the manager came out of her office,
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she saw defendant, became frightened, and called the police. When
the police arrived, defendant drove away, but later came back and
again began staring at the manager's office.
On direct appeal, we affirmed defendant's conviction and
sentence and the Supreme Court denied his petition for
certification. State v. Kerrigan, No. A-5162-09 (App. Div. Oct.
14, 2011), certif. denied, 210 N.J. 263 (2012).
In February 2015, defendant filed a petition for PCR. He was
assigned counsel, and the PCR court heard oral argument on
defendant's petition on March 18, 2016. On March 22, 2016, the
PCR court entered an order denying defendant's petition and issued
a written opinion supporting that order.
In his PCR petition, defendant argued that his trial counsel
was deficient in failing to: (1) enforce subpoenas; (2) show that
the charges against defendant had no basis and were retaliatory;
(3) present evidence that defendant had filed a harassment
complaint against the manager; (4) show that defendant had filed
a complaint with the Internal Affairs Department of the police
department; (5) elicit certain testimony on cross-examination of
the police officer; and (6) bring out certain testimony from the
resident and manager. Judge Lydon addressed each of those
contentions in his written opinion. He found that defendant had
not established prejudice from any of the contentions. He also
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found that defendant failed to make a prima facie showing that his
trial counsel was ineffective.
II.
On this appeal, defendant makes one argument, which he
articulates as follows:
POINT I – THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION IN THIS CASE
Defendant's petition arises from the application of Rule
3:22-2, which permits collateral attack of a conviction based upon
a claim of ineffective assistance of counsel within five years of
the conviction. See R. 3:22-12(a)(1); see also Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58-59 (1987). To
establish a claim of ineffective assistance of counsel, a defendant
must satisfy the two-part Strickland test by showing that: (1)
"counsel made errors so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the Sixth
Amendment[,]" and (2) "the deficient performance prejudiced the
defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693 (citing U.S. Const. amend. VI); Fritz, supra,
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105 N.J. at 58-59 (adopting the Strickland two-part test in New
Jersey).
Rule 3:22-10(b) provides that a defendant is only entitled
to an evidentiary hearing if he or she establishes a prima facie
case in support of PCR. Moreover, there must be "material issues
of disputed fact that cannot be resolved by reference to the
existing record," and the court must determine that "an evidentiary
hearing is necessary to resolve the claims for relief." State v.
Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)). To
establish a prima facie case, a defendant must demonstrate "the
reasonable likelihood of succeeding under the test set forth in
Strickland[.]" State v. Preciose, 129 N.J. 451, 463 (1992).
Having reviewed defendant's arguments in light of the law and
the record, we affirm. Defendant essentially repeats the arguments
he made before Judge Lydon. Judge Lydon detailed each of
defendant's arguments, explained why the arguments did not satisfy
either prong of the Strickland test, and explained why defendant
was not entitled to an evidentiary hearing. We agree with Judge
Lydon's analysis of the facts and the law.
Affirmed.
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