RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3781-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BOBBY Q. PERRY, a/k/a
BOBBY PENNY,
Defendant-Appellant.
____________________________
Submitted June 4, 2019 – Decided June 21, 2019
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-01-0049.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel, on the
brief).
Jennifer Davenport, Acting Prosecutor of Union
County, attorney for respondent (Reana Garcia, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Bobby Perry appeals from a Law Division order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
The facts revealed by the trial record were outlined in our opinion on
direct appeal, State v. Perry, No. A-1686-12 (App. Div. Aug. 27, 2014) (Perry
I), the Supreme Court's opinion on direct appeal, State v. Perry, 225 N.J. 222,
226-29 (2016), and our opinion on remand, State v. Perry, No. A-1686-12 (App.
Div. Aug. 24, 2016) (Perry II), and need not be repeated in full here. Defendant
was charged with sexually and physically assaulting a woman he had been
casually dating. During the attack, defendant repeatedly sexually assaulted the
victim, struck her face with a closed fist, and repeatedly threatened further
violence unless she complied with his demands. The victim suffered facial
injuries including a loosened tooth and a lacerated lip that required eleven
stitches to close. The injuries were observed by police officers from two police
departments and a sexual assault nurse.
A Union County Grand Jury indicted defendant on first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(3); second-degree sexual assault, N.J.S.A.
2C:14-2(c)(1); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).
Tried to a jury, defendant was convicted of second-degree sexual assault and
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2
third-degree aggravated assault, but acquitted of aggravated sexual assault. The
trial court sentenced defendant to concurrent prison terms of eight years for the
sexual assault, with an eighty-five percent period of parole ineligibility pursuant
to the No Early Release Act, N.J.S.A. 2C:43-7.2(a), and three years for the
aggravated assault. Megan's Law applied, N.J.S.A. 2C:7-1 to -23, and defendant
was sentenced to parole supervision for life, N.J.S.A. 2C:43-6.4.
Defendant appealed his conviction and sentence. In a split decision in
Perry I, we reversed and remanded for a new trial, holding the DNA evidence of
an unidentified semen stain, which did not belong to defendant, found on shorts
the victim was wearing the night of the assault, was relevant to prove defendant's
theory the victim's ex-boyfriend perpetrated the assault. The dissent concluded
"the trial court properly applied the Rape Shield Law, N.J.S.A. 2C:14-7, to
exclude the DNA evidence proffered by defendant that served only to establish
the victim engaged in sex with an unknown third party." Perry I, slip op. at 22
(Guadagno, J., dissenting). The Supreme Court concluded "the semen found on
the victim's shorts constituted inadmissible evidence of 'sexual conduct' within
the meaning of the Rape Shield Law, and was not relevant to defendant's third-
party guilt defense." Perry, 225 N.J. at 226. The Court reversed, reinstated
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3
defendant's conviction, and remanded for this court to consider the remaining
issues.
On remand in Perry II, we rejected defendant's arguments that: (1) the
trial court erred by improperly admitting 404(b) evidence that defendant hated
women and belonged to a gang; (2) the State committed prosecutorial
misconduct throughout the trial by elaborating on the virtues of the victim,
disparaging the defense witness, and inflaming the passions of the jury; (3) the
cumulative impact of the errors denied defendant a fair trial; and (4) the trial
court erred by finding aggravating factor nine and by failing to find mitigating
factor twelve. We affirmed defendant's conviction and sentence. The Supreme
Court denied certification. State v. Perry, 228 N.J. 477 (2017).
Defendant filed a pro se petition for PCR, which raised the same grounds
he raised on direct appeal. Defendant's appointed counsel raised the following
issues:
POINT I: THE INDICTMENT SHOULD HAVE
BEEN DISMISSED IN ITS ENTIRETY BECAUSE OF
IMPROPER GRAND JURY PROCEEDINGS.
POINT II: [DEFENDANT] WAS DEPRIVED HIS
CONSTITUTIONAL RIGHT TO TESTIFY ON HIS
OWN BEHALF.
POINT III: [DEFENDANT'S] FUNDAMENTAL
RIGHT TO HAVE THE JURY FAIRLY EVALUATE
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THE EVIDENCE WAS SEVERELY PREJUDICED
BY COMMENTS MADE IN THE PROSECUTOR'S
SUMMATION.
POINT IV: THE TRIAL COURT DENIED
[DEFENDANT] HIS RIGHT TO A FAIR TRIAL BY
IMPARTIAL JURY AND HIS DUE PROCESS RIGHT
TO A FAIR TRIAL BECAUSE OF IMPROPER
CHARGES TO THE JURY.
POINT V: DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS.
POINT VI: THE CUMULATIVE EFFECT OF THE
ERRORS COMPLAINED OF RENDERED THE
TRIAL UNFAIR.
POINT VII: [DEFENDANT] WAS DENIED THE
EFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL.
POINT VIII: AN EVIDENTIARY HEARING IS
REQUIRED WITH REGARD TO THE
ALLEGATIONS OF DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF.
POINT IX: THE DEFENDANT'S MOTION FOR
POST-CONVICTION RELIEF SHOULD NOT BE
BARRED BY PROCEDURAL CONSIDERATION[S].
Following oral argument, Judge Robert J. Mega issued an order and
twenty-seven page opinion denying the petition without an evidentiary hearing. 1
1
Judge Mega also presided over the pre-trial proceedings and the trial.
A-3781-17T4
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The PCR court found defendant could have raised the issues in Points I, II, III,
and IV on direct appeal but did not. The court concluded those arguments were
thereby barred by Rule 3:22-4. Despite that conclusion, the court addressed the
merits of each of the arguments.
As to Point I, the court noted "challenges to a defective indictment are
ordinarily waived unless raised prior to trial," citing Rule 3:10-2(c). After
surveying the law regarding dismissal of an indictment, including the principle
that "[e]rrors during the grand jury proceedings are typically deemed cured if
the petit jury finds the defendant guilty," the court reviewed the testimony of
Detective William Fuentes, the sole witness presented to the grand jury. The
trial court found:
the Grand Jury hearing transcript does not support
[defendant's] contentions. Det. Fuentes testified
relying on his experience as an experienced law
enforcement officer, not an expert. In fact, when asked
if he could determine how long ago the victim's injuries
occurred, Det. Fuentes stated that he was not qualified
to do so. Instead, Det. Fuentes relied on his own
personal observations and interactions with the victim
and his interactions with other victims complaining of
fresh injuries during his fifteen-year career in law
enforcement. It is clear to this [c]ourt that the Grand
Jury dutifully performed its functions and did not
abdicate its responsibilities.
. . . [T]he Grand Jury transcript reveals that
[defendant's] contentions lack merit. It is highly
A-3781-17T4
6
unlikely that a motion to dismiss the indictment would
have been successful.
As to Point II, defendant argued that as a result of trial counsel's
ineffective representation he was deprived of the ability to make an informed
decision whether to testify in his own defense. Defendant contends that even
though trial counsel provided him with a copy of the initial discovery, she did
not review it with him or provide him with copies of the supplemental discovery
concerning the nature and extent of the victim's injuries. He further claimed
trial counsel did not discuss the State's witnesses or their likely testimony.
Defendant alleges trial counsel told him not to testify without explaining why it
would not be in his best interest.
The PCR court reviewed the colloquy between the trial court, trial
counsel, and defendant regarding waiver of the right to testify. After being
sworn, defendant stated he had reviewed the Waiver Not to Testify form with
trial counsel and signed it. He said he had enough time to go over the form with
his attorney and did not need more time to do so. When asked if it was his
choice to give up his right to testify, defendant answered, "Yes." Defendant also
said he had no questions for the court or trial counsel. Finally, when asked if he
was satisfied with trial counsel's advice and his discussion with her, defendant
answered, "Yes." Based on this testimony, the PCR court concluded:
A-3781-17T4
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[defendant] was informed of his right to testify,
consulted with counsel on the issue, and decided he
would exercise his right not to take the stand. While
[defendant] submitted a certification purporting to
explain the underlying reasons he did not testify in his
own defense, a close review reveals [defendant's]
certification is nothing more than a mere parroting of
the allegations contained in his brief. While
[defendant's] allegations are the sort that may give rise
to an ineffective assistance of counsel claim, the record
is devoid of any objective proof which would elevate
them above bald assertions. Therefore, as [defendant's]
claim is without merit, it is denied as a basis for post-
conviction relief.
As to Point III, defendant argued trial counsel was ineffective by failing
to object to several instances of alleged prosecutorial misconduct during
summation. Defendant claimed the prosecutor improperly presented the
summation in personal terms using personal pronouns and expressed a personal
opinion regarding the veracity of the victim's version of the events. The State
argued the prosecutor's comments were fair and responsive comments on the
evidence when viewed in the context of defendant's summation. The State noted
trial counsel lodged an objection and obtained a curative instruction by the trial
court.
The PCR court found defendant had raised the issue of the prosecutor's
comments during summation regarding the credibility of the victim on direct
appeal. The PCR court noted we rejected the argument, stating: "We find the
A-3781-17T4
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prosecutor's summation did not amount to prosecutorial misconduct that so
exceeded the bounds of propriety that defendant was denied a fair trial," quoting
Perry II, slip op. at 16. While defendant rebranded his claim of prosecutorial
misconduct by alleging the prosecutor presented summation in personal terms
and with personal opinions, the PCR court found "this issue was raised in a
substantially equivalent manner on appeal," and was barred by Rule 3:22-5.
Nevertheless, the PCR court addressed the merits of the arguments and found:
the assistant prosecutor's comments were within the
purview of reasonable inferences to be drawn from the
evidence presented, and therefore, the statements were
proper. The assistant prosecutor's commentary on the
veracity of the witnesses and the reliability of the
victim's testimony was offered in response to defense
counsel's assertion that the victim was making up
"fantastical" stories. The assistant prosecutor was
permitted to respond to defense counsel's arguments as
long as her comments do not stray beyond the evidence.
While it may be ideal for trial counsel to avoid phrasing
things in "personal terms," opening and closing remarks
are not delivered in a vacuum. A review of the
transcript reveals that both the assistant prosecutor and
defense counsel utilized personal pronouns in their
comments to the jury and [defendant] was not unduly
prejudiced as a result. Furthermore, it must once again
be highlighted that defense counsel successfully
objected to and obtained a curative instruction from the
[c]ourt regarding the grade of victim's dental injury.
Thus, trial counsel's failure to object to the assistant
prosecutor's statement neither departed from the
objective professional standard nor prejudiced
[defendant]. Thus, as [defendant's] claim is without
A-3781-17T4
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merit, the claim is denied as a basis for post-conviction
relief.
As to Point IV, the PCR court noted the trial court had issued curative
instructions following trial counsel's objections to the State's summation, the
severity of the victim's dental injury, and the evidence the jury should consider
during its deliberations. The court concluded the claim lacked merit.
The PCR court commented on the degree of success achieved by both trial
and appellate counsel. "Trial counsel successfully obtained an acquittal on the
first-degree aggravated [sexual] assault charge . . . despite the evidence
presented by the State supporting this charge . . . . Appellate counsel identified
the Rape Shield issue and successfully argued for a reversal before the New
Jersey Supreme Court." The court noted trial and appellate counsel are not
obligated to raise or advance arguments that "are obviously frivolous or
specious."
The PCR court concluded defendant had not made a prima facie showing
of ineffective assistance of trial or appellate counsel. The court found the claim
appellate counsel was ineffective was unsubstantiated, noting the record does
not show "appellate counsel's performance fell below the objective professional
standard." The PCR court held defendant was not entitled to an evidentiary
hearing or PCR.
A-3781-17T4
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Defendant then filed this appeal, raising the following argument:
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING WHERE HE
ESTABLISHED A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
FAILURE OF TRIAL COUNSEL TO CALL THE
DEFENDANT TO TESTIFY AT TRIAL.
Based on our review of the record and the applicable law, we conclude
this argument lacks sufficient merit to warrant extended discussion. R. 2:11-
3(e)(2). We affirm substantially for the reasons stated by Judge Mega in his
cogent written opinion. We add the following comments.
Our analysis is guided by well-established legal standards. PCR courts
are not required to conduct evidentiary hearings unless the defendant establishes
a prima facie case and "there are material issues of disputed fact that cannot be
resolved by reference to the existing record." R. 3:22-10(b). "To establish such
a prima facie case, the defendant must demonstrate a reasonable likelihood that
his or her claim will ultimately succeed on the merits." State v. Marshall, 148
N.J. 89, 158 (1997). As the PCR court did not hold an evidentiary hearing, we
undertake a de novo review. State v. Parker, 212 N.J. 269, 278 (2012).
Under the Sixth Amendment, a criminal defendant is guaranteed the
effective assistance of legal counsel in his defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish a deprivation of that right, a conv icted
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defendant must satisfy the two-part test enunciated in Strickland by
demonstrating: (1) counsel's performance was deficient, and (2) the deficient
performance actually prejudiced the accused's defense. Ibid.; accord State v.
Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New
Jersey). "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." Fritz, 105
N.J. at 52 (quoting Strickland, 466 U.S. at 687). Defendant "must show 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." State v.
Harris, 181 N.J. 391, 432 (2004) (quoting Strickland, 466 U.S. at 694).
Essentially, defendant reasserts the same arguments he raised before the
PCR court. We agree with Judge Mega's characterization of defendant's
allegations as mere bald assertions unsubstantiated by objective proofs. Before
the PCR judge and in this appeal, defendant's petition did not make a prima facie
showing of ineffective assistance of counsel, nor did it involve "material issues
of disputed fact" incapable of resolution through "reference to the existing
record." R. 3:22-10(b). Accordingly, an evidentiary hearing was not required
and PCR was not appropriate.
A-3781-17T4
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Affirmed.
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STATE OF NEW JERSEY VS. BOBBY Q. PERRY (10-01-0049, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion