STATE OF NEW JERSEY VS. KENDELL GRIMSLEY (11-02-0115, UNION 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NOT FOR PUBLICATION WITHOUT THE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-5186-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENDELL GRIMSLEY, a/k/a
KENDALL GRIMSLEY, SHAWN
HELTON, KEITH GRIMSLEY,
and KENDAL GRIMSLEY,

Defendant-Appellant.

Submitted September 13, 2018 – Decided October 9, 2018

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 11-02-0115.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).

Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Izabella M.
Wozniak, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

Defendant Kendell Grimsley appeals from the May 31, 2017 Law Division

order denying his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of second-degree robbery, N.J.S.A.

2C:15-1. He thereafter entered a guilty plea to third-degree burglary, N.J.S.A.

2C:18-2, also charged in the same indictment, however, the burglary conviction

is not being appealed. Defendant was sentenced as a persistent offender,

N.J.S.A. 2C:44-3(a), to a ten-year term of incarceration on the robbery

conviction subject to eighty-five percent parole ineligibility pursuant to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In accord with the plea

agreement, he was sentenced on the burglary charge to five years imprisonment,

subject to one and one-half years of parole ineligibility, to be served on a

concurrent basis. On appeal, we affirmed the judgment of conviction. State v.

Grimsley, No. A-4863-13 (App. Div. Sept. 28, 2015). The Supreme Court

denied certification. State v. Grimsley, 224 N.J. 123 (2016).

The incident which resulted in the conviction occurred on September 19,

2010. As we described in our prior decision:

. . . at approximately 10:00 p.m., S.M. was unloading
groceries in a well-lit parking area in front of her
apartment building when a vehicle pulled in next to her.
A man briefly stepped out of the car and she exchanged

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 a few words with him. He said "she's not here" and got
back in the vehicle. S.M. resumed emptying her trunk
when she felt a "tremendous pull" on her purse, like
"someone ripped my arm off[.]" She turned and saw
the man she had spoken to, whom she later identified as
defendant, "tugging and tugging[.]" S.M. was dragged
to the ground while defendant continued to tug at her
purse; he was eventually able to pull it away and
jumped back into the vehicle. As a result of the
encounter, S.M.'s arm was badly bruised, she scraped
her left elbow, and ripped her pants. The car drove off
slowly enough that S.M. was able to note the make and
license plate number and provide the relevant
information to the Hillside Police Department. The
robbery was witnessed from a distance of five to ten
feet by an acquaintance of S.M., J.M., and by J.M.'s
husband.

[Grimsley, slip op. at 3.]

On September 21, 2010, defendant and his co-defendants were arrested in

the vehicle described by the robbery victim. The car had the same license plate

the robbery victim described, and police found a flash drive she kept in her purse

in the car. Id. at 4.

When presented with a photographic array, the victim selected defendant's

photo, as did J.M. Ibid. J.M.'s husband could not identify anyone. At trial,

although counsel told the judge that J.M.'s husband's description of the robber

significantly differed from defendant's appearance, no supporting affidavit or

other documentation has been presented to support the point. Essentially,

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nothing in the record indicates the substance of the husband's proposed

testimony.

On appeal, defendant alleged that one of his co-defendants had given an

exculpatory statement. Id. at 8. After the trial, Mateen Abdul-Malik gave a

statement to defendant's investigators. In it, he claimed he had told prosecutors

that when the occupants of the vehicle described by the robbery victim were

arrested, defendant had just gotten into the car, and was being driven to a

supermarket. Id. at 7. Abdul-Malik also alleged that the prosecutor's

investigators became angry and left when they heard this narrative. Ibid.

Defendant asserted that Abdul-Malik described this in a letter, although it has

never been produced. Id. at 6-7.

A Union County Prosecutor's Office detective, however, stated in a

follow-up interview summary that Abdul-Malik, when he spoke to the

authorities, denied being in the vehicle on the night of the robbery, and did not

mention defendant at all. Id. at 7. We concluded on appeal that the State did

not violate Brady v. Maryland, 373 U.S. 83 (1963), since Abdul-Malik had no

relevant, exculpatory information until after defendant was convicted. Id. at 9-

10. Defendant was not prejudiced by the State's failure to disclose the pretrial

interview with the co-defendant, since at that point the co-defendant provided

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absolutely no relevant information whatsoever. Thus, the State could not "be

charged with withholding information it never possessed." Id. at 10. The

argument lacked sufficient merit to warrant discussion in a written opinion and

nothing further was stated with regard to Abdul-Malik's alleged exoneration.

Ibid.

Following the affirmance of his conviction, defendant filed a timely PCR

petition pro se, arguing that counsel should have interviewed his mother and

called her as his alibi witness. His petition, asserting ineffective assistance of

counsel, was not supplemented once counsel was assigned. However, we note

in defendant's PCR brief filed in the Law Division, without any supporting

certification or affidavit, counsel argued that trial counsel was ineffective

because he did not realize co-defendants Dandel Grimsley and Abdul-Malik

could have exonerated defendant. Grimsley is not mentioned again. Defendant

attached to the brief statements allegedly taken from Abdul-Malik as exhibits.

The statements are not included in our appendix, and in any event, were never

signed by Abdul-Malik because they were the same statements taken by

defendant's investigators after the trial ended. No mention is made anywhere in

either the petition or the brief, regarding the eyewitness's husband's allegedly

different description of the victim's assailant.

A-5186-16T1
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 Although the judge granted an evidentiary hearing, he concluded after

hearing testimony from trial counsel, defendant's mother, and defendant that

counsel was not ineffective because he made a strategic decision not to call

defendant's mother as a witness. He concluded that the mother's testimony even

at the hearing was inconsistent as to times, and that when interviewed by trial

counsel, she was confused about timeframes. Therefore, trial counsel's decision

not to call her as a witness was an unimpeachable strategic decision.

On this appeal, defendant argues:

POINT I
PETITIONER RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.

(1) Trial counsel erred when he failed to call Sarah
Grimsley as an alibi witness at trial.

(2) Trial counsel was ineffective for failing to call
co-defendant Mateen Abdul-Malik as a witness.

(3) Trial counsel's cumulative errors deprived
[d]efendant of his constitutional right to effective
assistance of counsel.

POINT II
AS THE PCR COURT FAILED TO ADJUDICATE
ALL OF DEFENDANT'S CLAIMS, THIS MATTER
MUST BE REMANDED FOR A NEW PCR
HEARING.

A-5186-16T1
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 POINT III
THIS MATTER SHOULD BE REMANDED FOR A
NEW PCR HEARING AS PCR COUNSEL FAILED
TO RAISE A MATERIAL CLAIM OF ERROR BY
DEFENDANT'S ATTORNEY.

We find no merit to these arguments. R. 2:11-3(e)(2).

In order to obtain relief based on ineffective assistance grounds, defendant

is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The alleged

deficiencies here do not meet either the performance or prejudice prongs of the

Strickland test.

First, as to defendant's mother, trial counsel testified explicitly that when

he interviewed her before trial, she could not pinpoint the time she saw

defendant at their home on the night in question. Counsel's decision not to call

a witness who could potentially do the case more harm than good was strategic

and is inviolate. "[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable[.]"

Strickland, 466 U.S. at 690. "Decisions as to trial strategy or tactics are virtually

unassailable on ineffective assistance of counsel grounds." State v. Cooper, 410

N.J. Super. 43, 57 (App. Div. 2009).

A-5186-16T1
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 The issue regarding calling Abdul-Malik was not raised by PCR counsel

during the evidential hearing. It was not mentioned in the trial judge's decision

granting it. But Rule 3:22-10(c) requires factual assertions to be set forth in an

affidavit or certification, and to be based upon personal knowledge only.

Unsigned investigator's reports summarizing statements made by a third party

do not fall within the requirements of the rule.

Additionally, Rule 3:22-5 bars consideration of issues previously

addressed. Clearly, Abdul-Malik's allegedly exculpatory statements regarding

defendant's involvement have been previously addressed and disposed of. His

claims here are nothing more than a reiteration of a bald assertion which lacked

merit. See discussions in State v. Porter, 216 N.J. 343, 355 (2013); State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

No mention whatsoever was made either in the PCR moving papers, the

PCR petition submissions, or by counsel, regarding any claim that the

eyewitness's husband's description of the assailant differed from defendant's

appearance. Nothing in the record other than defense counsel's uncorroborated

claim at trial even gives rise to speculation regarding this point. It is nothing

more than an unsupported bald assertion. See Cummings, 321 N.J. Super. at

170.

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Affirmed.

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