RECORD IMPOUNDED
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0229-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMUEL WOODY,
Defendant-Appellant.
_________________________
Submitted October 29, 2019 – Decided November 14, 2019
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 12-06-
0497.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Carlos Paul Morrow, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Samuel Woody appeals from an order denying his post-
conviction relief (PCR) petition without an evidentiary hearing. He contends
the court erred by failing to find he established a prima facie case of ineffective
assistance of his trial counsel entitling him to either PCR or an evidentiary
hearing. We disagree and affirm.
I.
We summarized the evidence supporting defendant's convictions for
second-degree official misconduct, N.J.S.A. 2C:30-2, and fourth-degree
criminal sexual contact, N.J.S.A. 2C:14-3(b), in our opinion affirming the
convictions, State v. Samuel Woody, No. A-4281-13 (Apr. 18, 2016) (slip
opinion at 2–8). We briefly restate the pertinent evidence, as supplemented by
additional facts supported by the PCR proceeding record.
K.C. was romantically involved with Plainfield Police Officer Fernando
Sanchez. She became upset when she believed Officer Sanchez visited another
woman's home. She removed his cellphone from his patrol car that was parked
outside the woman's home and called the woman in an attempt to contact Officer
Sanchez.
Defendant, who was also employed as a Plainfield police officer, later
called defendant and requested that she return Officer Sanchez's cellphone. K.C.
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knew of defendant and went to police headquarters to return the phone. K.C.
spoke to defendant and Lieutenant Richard Urbanski at the headquarters,
acknowledged she took the phone, and was photographed, fingerprinted and
served with papers. At that point, she realized she was being charged with a
crime, but she did not understand she had been arrested. Defendant advised
K.C. she was free to leave the headquarters.
Defendant followed K.C. outside of the headquarters and asked her to
meet him. She agreed and traveled to a location near her home. Defendant
arrived in his police vehicle, was dressed in his police uniform, and had his
police radio. He directed that K.C. follow him to another location near his
cousin's home, and she complied.
Once at the location, K.C. and defendant parked their cars next to each
other. Defendant exited his patrol vehicle, stood outside of K.C.'s vehicle, and
told her she could receive five years in prison for taking the phone. He also said
he would file the paperwork and enter the charge in the computer , and that he
could "get rid of the paperwork." K.C. understood defendant's statement to
mean he could dismiss the charges. Defendant said he could lose his job if he
did so.
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As K.C. was prepared to leave, defendant asked to see her vaginal area.
K.C. placed her phone in the vehicle's ashtray and activated a recorder. She
acceded to defendant's request to expose her vaginal area because she had a child
and did not want to go to jail. The recording of the ensuing colloquy between
K.C. and defendant, while she exposed her vaginal area to him, was the
centerpiece of the State's evidence. It showed defendant requesting that K.C.
expose her vaginal area in exchange for his agreement K.C. would not go to jail
or court and would not get a summons. Because defendant stood outside of
K.C.'s vehicle, she could not see him from the waist down. On the recording ,
K.C. asked defendant why his "hand [was] down there," and defendant
responded, "I'm jerking on my dick."
Later that day, defendant served K.C. with a summons and a complaint
with upgraded charges. K.C. asked defendant, "what about what I did," and he
replied, "that never happened."
Defendant disputed K.C.'s version of the events, and testified he and K.C.
had a dating relationship. He explained that he was off duty when he met with
K.C. and that the recorded colloquy occurred during a consensual interaction.
He denied masturbating or touching himself, and testified he never told K.C. to
touch herself and that she did not touch herself.
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The jury convicted defendant of second-degree official misconduct and
fourth-degree criminal sexual contact. As noted, we affirmed defendant's
conviction on his direct appeal, Woody, slip op. at 21, and the Supreme Court
denied defendant's petition for certification, State v. Woody, 227 N.J. 111
(2016).
Defendant filed a timely pro se PCR petition generally alleging that "he
was denied effective assistance of counsel at [the] trial level." The petition did
not assert any facts detailing the alleged deficiencies in defendant's trial
counsel's performance supporting the ineffective assistance of counsel claim.
Defendant also filed a pro se brief arguing his trial counsel was ineffective. 1
Defendant's assigned counsel subsequently filed a brief in support of the
PCR petition.2 The brief incorporated by reference the arguments in defendant's
pro se brief, including claims that his trial counsel failed to: investigate an alibi
defense and material witnesses; timely obtain grand jury transcripts; and
impeach prosecution witnesses and object to their testimony. Defendant's PCR
1
Defendant's pro se brief is not included in the record on appeal.
2
Defendant's PCR counsel's brief is included in defendant's appendix on appeal
and refers to an "amended [PCR] petition." The amended petition is not included
in defendant's appendix on appeal. In defendant's brief on appeal, he does not
cite to either his original or amended petitions as support for any of the factual
assertions upon which he relies.
A-0229-18T1
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counsel further argued that defendant's trial counsel was ineffective by failing
to visit the crime scene and failing to interview Officer Sanchez and Lieutenant
Urbanski. PCR counsel argued Lieutenant Urbanski would have testified
defendant was off duty when he left police headquarters with K.C. and defendant
did not take a patrol car when he left the headquarters.
PCR counsel's brief further argued that defendant's trial counsel's
performance was deficient by failing to call Officer Sanchez as a witness. PCR
counsel argued Sanchez would have testified that K.C. was extorting money
from him and that K.C. "was in this for the money and had financial difficulty."
He also alleged trial counsel did not call Officer Sanchez as a witness because
Officer Sanchez's attorney and defendant's trial counsel were de facto partners
who shared office space, and therefore his trial counsel had a conflict of interest.
PCR counsel further argued trial counsel was ineffective by failing to
subpoena cellphone and GPS records that would have shown the incident took
place in defendant's driveway and that defendant and K.C. communicated
numerous times over the months prior to the incident. According to PCR
counsel, trial counsel was also ineffective by failing to obtain police records that
would have shown defendant did not have a patrol car when the incident
occurred. Last, PCR counsel alleged defendant and his trial counsel were "at
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odds" up to the time of jury selection because of a dispute concerning trial
counsel's fees.
The PCR court heard argument on the petition. Defendant's PCR counsel
relied on the arguments asserted in his brief but focused on the claim that trial
counsel should have called Officer Sanchez to testify that K.C. had looked to
him for financial support. PCR counsel also reprised the claim that Officer
Sanchez's counsel and defendant's trial counsel shared office space and were de
facto partners, and therefore trial counsel had a conflict and failed to call Officer
Sanchez as a witness at trial as a result.
The court rejected the claims, finding defendant failed to present any
evidence that the purported error in not calling Officer Sanchez at trial resulted
in prejudice. The court noted defendant testified at trial he had previously
offered K.C. money and that the case was "about" money. The court also found
the recording of the incident was "devastating," "unambiguous," "clear," and
"was a tape of the actual incident," and that the recording showed "an unguarded
moment of truth of [defendant] looking to take advantage of his position." Thus,
the court concluded Sanchez's putative testimony would not have affected the
trial outcome.
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The court further found defendant failed to make any showing there were
alibi witnesses whose testimony would have supported a defense, or that either
Officer Sanchez or Lieutenant Urbanski would have provided any testimony
supporting a defense to the charges. The court rejected defendant's other claims
based on its conclusion defendant failed to demonstrate that any alleged failure
of his trial counsel to investigate alibi witnesses, obtain GPS or cellphone
records, or cross-examine witnesses differently would have effectively refuted
the compelling recording of defendant's commission of the crimes with which
he was charged and convicted. This appeal followed the court's entry of an
order denying the PCR petition.
Defendant offers the following arguments for our consideration.
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL ENTITLING
HIM TO POST-CONVICTION RELIEF OR AN
EVIDENTIARY HEARING ON THE ISSUE OF THE
FAILURE TO CALL SANCHEZ AS A
CORROBORATING WITNESS TO HIS DEFENSE
THAT [K.C.'S] CLAIM WAS ONLY A FORM OF
EXPLOITATION AS A MEANS TO GAIN A
FINANCIAL WINDFALL[.]
A. APPLICABLE LAW[.]
B. COUNSEL WAS INEFFECTIVE FOR FAILING
TO ADEQUATELY PREPARE FOR TRIAL IN
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HAVING FOREGONE A DEFENSE WITNESS
WHOSE TESTIMONY WOULD HAVE HAD THE
LIKELY EFFECT OF CHANGING THE OUTCOME
OF THE TRIAL[.]
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies
to mixed questions of fact and law. Harris, 181 N.J. at 420. Where, as here, an
evidentiary hearing has not been held, it is within our authority "to conduct a de
novo review of both the factual findings and legal conclusions of the PCR court."
Id. at 421. We apply that standard here.
An evidentiary hearing on a PCR petition is required where a defendant
establishes a prima facie case for PCR under the standard established by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686
(1984), and the existing record is inadequate to resolve defendant's claim, State
v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)); see also State v.
Preciose, 129 N.J. 451, 462–63 (1992). Under Strickland, a defendant first must
show that his or her attorney's handling of the matter "fell below an objective
standard of reasonableness." Strickland, 466 U.S. at 688; see also State v. Fritz,
105 N.J. 42, 58 (1987). A defendant also must show there exists a "reasonable
A-0229-18T1
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probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694; see also
Fritz, 105 N.J. at 60–61. A failure to satisfy either prong of the Strickland
standard requires the denial of a PCR petition. Strickland, 466 U.S. at 700; State
v. Nash, 212 N.J. 518, 542 (2013); Fritz, 105 N.J. at 52.
Here, the court did not err in denying defendant's PCR petition. All of the
purported factual allegations supporting his claim that trial counsel's
performance was deficient are untethered to any competent evidence. PCR
petitions must be "accompanied by an affidavit or certification by defendant, or
by others, setting forth with particularity," State v. Jones, 219 N.J. 298, 312
(2014), "facts sufficient to demonstrate counsel's alleged substandard
performance," ibid. (quoting Porter, 216 N.J. at 355). "[B]ald assertions" are
insufficient to sustain a defendant's burden of establishing a prima facie case of
ineffective assistance under the Strickland standard. State v. Cummings, 321
N.J. Super. 154, 170 (App. Div. 1999).
When a defendant asserts that his or her counsel failed to call exculpatory
witnesses, "he [or she] must assert the facts that would have been revealed,
'supported by affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification.'" State v. Petrozelli, 351 N.J.
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Super. 14, 23 (App. Div. 2002) (quoting Cummings, 321 N.J. Super. at 170).
Defendant's claim his trial counsel was ineffective by failing to call Officer
Sanchez and Lieutenant Urbanski as witnesses at trial is unsupported by any
competent evidence about their putative testimony. Defendant's claims about
what they would have said if called as witnesses is based on supposition and is
founded solely on the arguments of counsel made to the PCR court. Thus,
defendant presented the PCR court with a record bereft of any competent
evidence about the testimony he contends the witnesses would have provided.
Lacking such evidence, defendant could not, and did not, satisfy his burden of
demonstrating that his trial counsel's performance was deficient based on his
alleged error in not calling either of the witnesses at trial. The lack of evidence
also requires a finding that defendant failed to establish that had the witnesses
been called, there is a reasonable probability the result of the trial would have
been different.
Defendant's claims concerning his trial counsel's alleged other errors
suffer from the same fatal infirmity. There was no competent evidence
presented to the PCR court establishing that GPS or cellphone data would have
yielded evidence relevant to the determination of defendant's guilt or innocence,
or that records would show defendant was off duty or did not have a patrol car
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when the recorded incident occurred. There was no evidence establishing
defendant's trial counsel and Officer's Sanchez's counsel shared office space or
were de facto partners, that defendant's trial counsel had a conflict of interest,
or that defendant and his trial counsel were "at odds" prior to trial over a fee
dispute. Defendant did not provide any competent evidence supporting a
purported alibi defense or establishing what additional pretrial investigation
would have yielded that would have supported his defense or made a difference
at trial. As our Supreme Court has explained, "when a petitioner claims his trial
attorney inadequately investigated his case, he must assert the facts that an
investigation would have revealed, supported by affidavits or certifications
based upon the personal knowledge of the affiant or the person making the
certification." Porter, 216 N.J. at 353 (quoting Cummings, 321 N.J. Super. at
170). Defendant provided no such evidence here. 3
In sum, defendant's claims that his trial counsel's performance was
deficient constitute nothing more than bald assertions and arguments that are
wholly unsupported by any competent evidence presented to the PCR court.
3
We do not suggest that had defendant produced some competent evidence
supporting his numerous factual claims that he would have sustained his burden
under the Strickland standard. A determination of whether a defendant satisfies
the Strickland standard is dependent on a consideration of competent evidence
supporting a defendant's PCR petition. No such evidence was presented here.
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The court correctly determined defendant failed to satisfy his burden of
presenting evidence establishing that his trial counsel's performance was
deficient. See Strickland, 466 U.S. at 688. Defendant also failed to present
competent evidence demonstrating there is reasonable probability that but for
his trial counsel's purported errors the result of his trial would have been
different.4 Id. at 694. Because defendant failed to present evidence satisfying
both prongs of the Strickland standard, he was not entitled to an evidentiary
hearing. See id. at 700.
Affirmed.
4
We also observe that even if we accepted defendant's unsupported allegations
concerning the purported errors of his trial counsel, he fails to establish
prejudice under the second prong of the Strickland standard. As aptly noted by
the PCR court, the incident giving rise to the charges against defendant was
recorded, and the recording overwhelmingly established defendant's guilt; the
recording demonstrates defendant suggested to K.C. that if she exposed her
vaginal area to him, he would take action, as he could only in his role as police
officer, to ensure she did not go to jail or court, or receive a summons. As a
result, and as the PCR court found, even if defendant's trial counsel committed
the alleged errors, defendant did not demonstrate but for those errors there is a
reasonable probability the result of his trial would have been different.
Strickland, 466 U.S. at 694.
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