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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0956-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMAL S. COLEY, a/k/a
JAMALL BELL,
Defendant-Appellant.
_____________________________
Submitted February 26, 2018 – Decided June 22, 2018
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment Nos.
09-12-1117 and 09-12-1118.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, 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 Jamal Coley appeals from an August 15, 2016 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
In 2011, a jury convicted defendant of first-degree
aggravated sexual assault while using a weapon, N.J.S.A. 2C:14-
2(a)(4); first-degree aggravated sexual assault in the course of
committing a robbery, N.J.S.A. 2C:14-2(a)(3); second-degree
sexual assault with the use of force or coercion but without
causing serious injury, N.J.S.A. 2C:14-2(c)(1); first-degree
armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a). In a separate proceeding, the same jury convicted
defendant of second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(b).
At the time of sentencing, the judge noted defendant had
eleven prior indictable convictions. On the basis of a 1997
conviction for sexual assault, for which defendant was serving a
sentence of community supervision for life, the judge granted
the State's motion for a mandatory extended term of imprisonment
pursuant to N.J.S.A. 2C:43-6.4(e). After the appropriate
mergers, defendant was sentenced to life in prison without
eligibility for parole on the ground he was a repeat offender
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and had committed the first-degree aggravated sexual assault
with a weapon. On the second indictment, the judge sentenced
defendant to a consecutive term of ten years in prison with five
years of parole ineligibility.
We affirmed defendant's convictions and sentence on direct
appeal, State v. Coley, No. A-3393-11 (App. Div. Oct. 22, 2014)
(slip op. at 1), and the Supreme Court denied his petition for
certification, State v. Coley, 221 N.J. 285 (2015).
The facts underlying defendant's convictions are set forth
in our opinion. For context, we set forth the evidence adduced
at trial salient to the issues on appeal.
Police officers Michael Carreto and Joe Pevonis were on
patrol in Elizabeth when they looked down an alley and saw a
woman, L.S., hunched over and defendant behind her engaging in
what appeared to be sexual intercourse. The officers ordered
them to stop and to put up their hands. Defendant put his hand
over a fence and dropped a shiny object.
L.S. approached the officers with a terrified look on her
face and repeatedly whispered to them "he's got a gun." Officer
Carreto recognized L.S. as a prostitute he had previously
encountered, and subsequently found a .177 caliber BB gun in the
area where he saw defendant drop an object. Defendant was then
placed under arrest.
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L.S. told the officers she had been soliciting a customer
in a truck when defendant surprised her from behind. Defendant
pushed her to the side, struck the man in the truck with his
gun, and took the man's money. The man drove away and defendant
demanded money from L.S. When he discovered she had only a few
dollars, he forcibly pulled her into the alleyway. At gunpoint,
he ordered her to perform fellatio on him and then penetrated
her vaginally several times. He then turned her around, forced
her up against the fence, and was about to penetrate her anally
when the police arrived.
L.S. informed the police defendant had attempted to place a
condom on his penis but discarded it in the area. One of the
officers found a used condom on the ground, which was presented
as evidence at defendant's trial. Although defendant's DNA was
not found on the condom or on the handgun retrieved from the
other side of the fence, the victim's DNA was found on both
items.
In addition to L.S. and the police officers, an inmate who
had shared a jail cell with defendant after defendant was
arrested testified. The inmate reported that defendant said he
robbed a man in a truck and raped a white woman.
While testifying, the inmate acknowledged he had a lengthy
criminal record, and also admitted he initially hoped to be
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released from jail earlier than otherwise in exchange for
revealing defendant's admissions. However, he stated he did not
in fact receive any benefit for his testimony, and was motivated
to testify against defendant because he did not like rapists.
Defendant did not testify and did not present any witnesses.
In 2015, defendant filed a PCR petition alleging
ineffective assistance of trial counsel. Appointed PCR counsel
submitted a brief on defendant's behalf, in which he argued
trial counsel was ineffective because trial counsel failed to
confront the inmate with letters the inmate had written just
before trial. Defendant claimed the content of such letters
would have negatively impacted the inmate's credibility.
In a written opinion, the PCR judge, who was also the trial
judge, found the content of the two letters innocuous. In the
letters the inmate merely asked defendant about the status of
the case or referenced unrelated topics. As the judge noted,
"At no point in either letter . . . does [the inmate] mention
any quid pro quo with the State or an intention to receive any
kind of benefit for offering testimony in [defendant's] case.
The topic of [the inmate's] testimony is not mentioned at all in
the letters." The PCR judge found defendant failed to make any
showing how confronting the inmate with the letters on cross-
examination would have altered the outcome of the trial.
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The PCR judge also observed trial counsel effectively
attacked the inmate's credibility by drawing out on cross-
examination the inmate had been convicted of larceny, receiving
stolen property, and other crimes involving fraud. The judge
determined that "[t]rial counsel ably and effectively
established that [the inmate] had a history of untruthfulness
and lying."
Defendant also contended trial counsel pressured him into
waiving his right to testify. The PCR judge determined the
record refuted such argument. When the State rested, trial
counsel advised the judge defendant was relinquishing his right
to testify. Defendant was placed under oath and questioned by
the judge about his decision. The judge was satisfied defendant
exercised his right to remain silent freely, knowingly, and
voluntarily.
Defendant alleged trial counsel failed to meet with or
review any of the discovery with him, and did not prepare for
trial. The PCR judge rejected these contentions, finding them
to be nothing but vague, bald assertions unsupported by any
evidence. Citing State v. Marshall, 148 N.J. 89 (1997), the
judge noted he need not hold a hearing because "the defendant's
allegations are too vague, conclusory, or speculative to
warrant" one. Id. at 158. In addition, the judge noted
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defendant did not show how any of these alleged deficiencies
prejudiced him and adversely affected the outcome of the trial.
On August 15, 2016, the judge entered an order denying
defendant's petition for PCR.
On appeal, defendant presents the following for our
consideration.
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 ADQUEATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITITONS FOR POST
CONVICTION RELIEF.
B. TRIAL COUNSEL DID NOT
ADEQUATELY REPRESENT THE DEFENDANT
ARISING OUT OF HIS FAILURE TO
THOROUGHLY DISCUSS WITH HIS CLIENT
ALL RELEVANT RAMIFICATIONS
ASSOCIATED WITH THE DECISION
WHETHER OR NOT TO TESTIFY, AS A
RESULT OF WHICH THE DEFENDANT DID
NOT TESTIFY IN HIS OWN DEFENSE.
C. THE DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF TRIAL
COUNSEL'S FAILURE TO EFFECTIVELY
CROSS-EXAMINE [THE INMATE], A
CRITICAL WITNESS UTILIZED BY THE
STATE AT TRIAL.
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On appeal, defendant reprises the arguments asserted before
the PCR judge, although he elaborates on the argument trial
counsel was ineffective because he allegedly pressured defendant
into waiving his right to testify. Defendant maintains he
informed counsel he hired L.S. to have sexual relations with him
and, thus, the sexual act was consensual. Defendant claims
counsel told him the jury would understand L.S. agreed to have
sex with him and thus defendant's testimony was unnecessary.
Defendant contends that, when the State rested, his
attorney failed to call any witnesses and, had he known that was
going to occur, he would have insisted upon testifying so the
jury would have heard his version of the events. Defendant
admits his attorney told him several times that, if he were to
testify, he would lose the case.
Defendant's argument is resoundingly refuted by the record.
Before defendant waived his right to testify, in defendant's
presence defense counsel stated he was not calling any witnesses
other than defendant in the event defendant wanted to testify.
By the time defendant decided not to testify, all of the State's
witnesses had testified, and it would have been patently obvious
there was no evidence L.S. had consented to the sexual act.
Defendant knew or should have known that if he wanted the jury
to believe the act was consensual, he was going to have to
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testify to such fact. In addition, defendant knew in advance of
his decision to not testify that his attorney was not going to
call any witnesses, with the exception of defendant if he wanted
to testify.
The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution guarantee
a defendant in a criminal proceeding the right to the assistance
of counsel. State v. Nash, 212 N.J. 518, 541 (2013). This
right includes "the right to the effective assistance of
counsel." Ibid. (quoting Strickland v. Washington, 466 U.S.
668, 686 (1984)).
The Court established a two-part test in Strickland, later
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987), to determine whether a defendant has been deprived of
the effective assistance of counsel. Strickland, 466 U.S. at
687. Under the first prong of this test, a petitioner must show
counsel's performance "fell below an objective standard of
reasonableness" and "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by
the Sixth Amendment." Id. at 687-88.
The first prong of the test is satisfied by showing
counsel's acts or omissions fell outside the wide range of
professionally competent assistance considered in light of all
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the circumstances of the case." State v. Allegro, 193 N.J. 352,
366 (2008) (quoting State v. Castagna, 187 N.J. 293, 314
(2006)). "[T]here is 'a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.'" Castagna, 187 N.J. at 314 (quoting Strickland,
466 U.S. at 689).
Under the second prong, a defendant "must show that the
deficient performance prejudiced the defense." Strickland, 466
U.S. at 687. That is, there must be a "reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. "The error
committed must be so serious as to undermine the court's
confidence in the jury's verdict or the result reached."
Castagna, 187 N.J. at 315.
After reviewing the record in light of the contentions
advanced on appeal, we conclude defendant's contention counsel
was ineffective is devoid of merit, and affirm for substantially
the same reasons expressed by Judge Robert J. Mega in his
comprehensive written decision. Further, the judge correctly
concluded there was no basis to order an evidentiary hearing.
See State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed.
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