NOT FOR PUBLICATION WITHOUT THE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-2294-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUCIUS SMITH,
Defendant-Appellant.
___________________________________
Submitted January 29, 2018 – Decided August 13, 2018
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
10-05-0835.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Erin M. Campbell,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Lucius Smith appeals from the trial court's order
denying, after a testimonial hearing, his timely petition for
post-conviction relief. We affirm.
A jury found defendant guilty of first-degree felony-murder
and robbery; and second-degree aggravated assault, and conspiracy
to commit robbery. Defendant and several cohorts attacked a man
as he walked down the street in Jersey City. They chased him,
took his wallet, and beat him with a brick, fracturing his skull
and killing him. Defendant received an aggregate forty-year
sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
We affirmed the conviction and sentence on direct appeal. State
v. Smith, No. A-1176-12 (App. Div. July 10, 2015), certif. denied,
223 N.J. 556 (2015).
In collaterally challenging his conviction, defendant alleged
his trial attorney provided ineffective assistance because he did
not adequately advise him about a plea offer; he recommended that
he not testify in his own defense; and he did not file a pre-trial
motion to dismiss the felony murder count. After hearing testimony
from defendant's trial counsel and defendant, Judge Mitzy Galis-
Menendez rejected defendant's contentions. The judge applied the
well-established two-pronged Strickland standard for demonstrating
a prima facie case of ineffective assistance. Strickland v.
Washington, 466 U.S. 668, 687 (1984) (stating that a petitioner
must show that counsel performed so deficiently as to deny the
constitutional right to counsel, and prejudice resulted). The
2 A-2294-16T2
judge found that defendant failed to prove his attorney performed
deficiently.
The judge credited trial counsel's testimony that he
adequately informed defendant of his right to testify at trial.
Counsel acknowledged that he advised defendant not to testify,
because the State lacked physical evidence to tie defendant to the
crime; defendant was unidentifiable in a video; and cooperating
co-defendants' testimony was inconsistent and subject to challenge
as self-interested. Counsel believed defendant could hurt his
chances of acquittal if he testified, because he would place
himself at the scene and might be rattled on cross-examination.
Citing State v. Davis, 116 N.J. 341 (1989), the court concluded
that counsel's advice was a reasonable strategic decision.
The judge also credited trial counsel's testimony that he
secured a twenty-year plea offer from the trial prosecutor.
Counsel advised defendant to accept it, and defendant agreed only
after some cajoling, but the prosecutor's supervisor disapproved
the offer and required a twenty-five year sentence. Judge Galis-
Menendez found that defendant then rejected the twenty-five year
offer and decided to go to trial. Thus, there was no failure to
keep defendant adequately informed of plea negotiations.
The court also rejected defendant's argument that his trial
counsel was deficient by failing to file a motion to dismiss the
3 A-2294-16T2
felony murder charge. Trial counsel believed that the viability
of the charge needed to be tested at trial. The court concluded
that was a reasonable assessment.
On appeal, defendant challenges each of the court's
conclusions, and argues, in a single point:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL ENTITLING HIM TO POST CONVICTION
RELIEF.
(A) Counsel was ineffective for advising the
defendant not to testify at trial.
(B) Counsel was ineffective for failing to
sufficiently notify defendant of a plea offer
of twenty-five years which undermined his
ability to make an intelligent decision of
whether to accept the offer.
(C) Counsel was ineffective for failing to
file a motion to dismiss the charge of felony
murder.
We defer to a trial court's factual findings made after an
evidentiary hearing on a petition for PCR. State v. Nash, 212
N.J. 518, 540 (2013). Mindful of the trial judge's opportunity
to hear and see live witnesses, "we will uphold the PCR court's
findings that are supported by sufficient credible evidence in the
record." Ibid. We review de novo issues of law. Ibid. Applying
that standard of review, we affirm substantially for the reasons
set forth in Judge Galis-Menendez's cogent written opinion.
We add the following brief comments.
4 A-2294-16T2
With respect to the plea offer, defendant was obliged to show
that but for the ineffective advice of counsel, he would have
accepted the plea offer and received a lesser sentence than he
received after trial. See Lafler v. Cooper, 566 U.S. 156, 163-64
(2012). Defendant failed to show his trial counsel's advice was
ineffective. The court credited defendant's counsel. He testified
he told defendant he could still take the twenty-five-year plea
deal, but defendant decided to go to trial.
As for the right to testify, the decision to waive that right
rested with the defendant. State v. Savage, 120 N.J. 594, 631
(1990). Defendant admitted that counsel apprised him of his right
to testify. Trial counsel testified that he advised against it,
and explained to defendant his reasoning. Counsel had subjected
defendant to a mock cross-examination, to demonstrate the
difficulty he would have on the stand. Defendant was convinced.
"[I]t is the responsibility of a defendant's counsel . . . to
advise defendant on whether or not to testify and to explain the
tactical advantages or disadvantages of doing so or not doing so."
Id. at 630 (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App.
Div. 1988). Trial counsel met that responsibility.
However, defendant takes issue with his attorney's underlying
conclusion that it would have been unwise to testify. He argues
the case for conviction was so strong after the State rested that
5 A-2294-16T2
defendant's only hope for acquittal depended on his taking the
stand in his own defense. Hindsight is twenty-twenty, but a PCR
court must avoid "the distorting effects of hindsight."
Strickland, 466 U.S. at 689. Who to call as a witness is a
difficult strategic decision. State v. Pierre, 223 N.J. 560, 579
(2015). Defendant failed to show that his trial counsel was
deficient. Indeed, aside from contending that he would have denied
personally taking the victim's wallet, he provided no proffer of
what he would have said on the witness stand to turn the tide of
the trial.
Defendant's contention that trial counsel was deficient by
failing to move to dismiss the felony-murder count lacks sufficient
merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
6 A-2294-16T2
STATE OF NEW JERSEY VS. LUCIUS SMITH (10-05-0835, HUDSON COUNTY AND STATEWIDE)
Combined Opinion