NOT FOR PUBLICATION WITHOUT THE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-5207-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAFELE K. BOMANI, a/k/a
SHAUN A. GOODING, SHAWN
GOODING, and SHAUN GRANT,
Defendant-Appellant.
_____________________________
Submitted January 14, 2020 – Decided February 10, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 09-08-2019
Joseph E. Krakora, Public Defender, attorney for
appellant (Craig S. Leeds, Designated Counsel, on the
brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Nicole Lynn Campellone, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kafele Bomani appeals from an order denying his petition for
post-conviction relief (PCR). He contends that his trial and appellate counsel
provided him with ineffective assistance. Having conducted a de novo review
of the record, we affirm substantially for the reasons explained by Judge Patricia
M. Wild in her thorough twenty-page opinion denying the PCR petition after
hearing oral argument, but without an evidentiary hearing.
A jury convicted defendant of first-degree attempted murder, N.J.S.A.
2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2); second- and third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:12-1(b)(2); and three weapons
offenses, including second-degree certain persons not to have a weapon,
N.J.S.A. 2C:33-7.
The evidence at trial established that defendant shot another man in the
early morning hours of October 20, 2007, outside the Wyndham Resort Hotel in
Atlantic City. The shooting was captured on video by a hotel surveillance
camera and witnessed by a hotel security guard who was watching the monitor
of the surveillance camera. A hotel bellman also witnessed the shooting. Both
the security guard and bellman saw the shooter get into a sports utility vehicle
(SUV) and the bellman noted the vehicle's license plate number. Defendant was
the registered owner of the SUV. A subsequent search of defendant's apartment
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2
found clothing, including a distinctive hat, that matched the clothing and hat
worn by the shooter as seen in the video.
The victim survived the shooting but refused to cooperate in the
investigation of the crime. At trial, defendant was identified as the sho oter by
the security guard and by DNA evidence from the hat.
The video surveillance recording was admitted into evidence but was not
in its original form. Detectives had not been able to make a copy of the digital
surveillance recording from the hotel security system. Consequently, they used
their own video recorder to film what they were looking at on the monitor in the
security office. After conducted a pre-trial hearing, the trial court ruled that the
copied surveillance evidence was admissible at trial. At trial the State used a
video expert to explain the recording process to the jury.
After the jury convicted defendant, he moved for a new trial contending
that there was newly discovered evidence. In support of that motion, he
presented a certification from an inmate named Matthew Hayes who had been
housed at the county jail at the same time as defendant. Hayes claimed that he
was a friend of the victim and he had been with the victim at the time of the
shooting. Hayes also claimed that it was not defendant who shot the victim.
The trial court conducted a post-trial hearing, took testimony from Hayes, and
A-5207-17T1
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concluded that his testimony was not credible. Accordingly, the trial court
denied defendant's motion for a new trial.
Initially, defendant was sentenced to an extended term of life in prison,
with a period of parole ineligibility, on the conviction for attempted murder. All
the other convictions were merged with his attempted murder conviction, except
for the certain persons weapons conviction. On the certain persons conviction,
defendant was sentenced to a concurrent prison term of ten years.
Defendant appealed his convictions and sentence. On his first appeal, we
affirmed defendant's convictions, but reversed his life sentence and remanded
for resentencing. State v. Bomani, No. A-3373-11 (App. Div. Mar. 3, 2014).
At his second sentencing, defendant was sentenced to thirty-five years in
prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant again appealed his sentence. We reversed and remanded for another
sentencing because the sentencing court had considered "what defendant's
sentence 'would have been if he had accomplished what he intended,' i.e.,
murder." State v. Bomani, A-0017-15 (App. Div. Feb. 9, 2016).
In July 2016, defendant was sentenced for a third time. On the conviction
for attempted murder, defendant was sentenced to twenty-five years in prison,
subject to NERA. All his other convictions were merged, except for the certain
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4
persons conviction. On that conviction, defendant was sentenced to ten years in
prison to run concurrent with his sentence for attempted murder.
Defendant filed a petition for PCR. 1 He was assigned counsel, and Judge
Wild heard oral argument on the petition. On March 16, 2018, Judge Wild
issued a written opinion and order denying defendant's petition.
In her opinion, Judge Wild addressed the eleven arguments raised by
defendant and his PCR counsel. Judge Wild found that two of defendant's
arguments had been raised on his first direct appeal and were, therefore,
precluded from being raised again. See State v. McQuaid, 147 N.J. 464, 484
(1997); State v. Preciose, 129 N.J. 451, 459 (1992); R. 3:22-4. Judge Wild then
comprehensively reviewed each of defendant's remaining arguments and found
that none of them established a prima facie showing of ineffective assistance of
counsel. Finally, Judge Wild found that defendant had submitted nothing that
created material issues of fact warranting an evidentiary hearing. See Preciose,
129 N.J. at 462-63; R. 3:22-10(e).
1
The petition included in the appendix does not identify when it was filed. In
his brief defendant stated that his PCR petition was filed on December 10, 2014.
In its brief, the State "adopted" defendant's statement of the procedural history.
The State has not argued that defendant's petition was untimely.
A-5207-17T1
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On this appeal, defendant challenges the denial of his PCR petition on
numerous grounds. Specifically, he presents the following arguments:
POINT I – DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE UNITED STATES AND NEW
JERSEY CONSTITUTIONS AND THE LOWER
COURT ERRED IN CONCLUDING OTHERWISE
A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF
COUNSEL, EVIDENTIARY HEARINGS
AND PETITIONS FOR POST
CONVICTION RELIEF
B. TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO RETAIN
A VIDEO FORENSIC EXPERT TO
REFUTE THE STATE'S EXPERT
WITNESS, DET. JOHANNESSEN,
REGARDING CRITICAL EVIDENCE,
SPECIFICALLY, THE SURVEILLANCE
VIDEO ALLEGEDLY CAPTURING THE
ACTUAL CRIME
C. TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
OBTAIN AND REVIEW ALL OF THE
DISCOVERY IN THIS CASE, AND
SUBSEQUENTLY, FAILING TO
PROVIDE ALL RELEVANT
DISCOVERY TO THE DEFENDANT
D. TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO
CONDUCT PRE-TRIAL
A-5207-17T1
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INVESTIGATION OF ALL POTENTIAL
WITNESSES HAVING RELEVANT
AND/OR EXCULPATORY
INFORMATION BEARING ON THE
CASE AND THEN CALLING THEM AS
DEFENSE WITNESSES
E. TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO
PROPERLY OBJECT WHEN THE
PROSECUTOR COMMITTED
FLAGRANT MISCONDUCT AND
TAINTED THE TRIAL BY TELLING
THE JURY THAT HE WOULD NEVER
HAVE MADE A PLEA OFFER TO THE
VICTIM IN THE VICTIM'S OWN
CRIMINAL MATTER, GRANTING THE
VICTIM LENIENCY IF HE TESTIFIED
AGAINST THE DEFENDANT
BECAUSE THAT WOULD
CONSTITUTE AN ILLEGAL BRIBE
F. TRIAL COUNSEL WAS
INEFFECTIVE IN NOT CHALLENGING
THE PROSECUTOR'S
VINDICTIVENESS IN SEEKING A
SUPERSEDING INDICTMENT FOR
ATTEMPTED MURDER BECAUSE
DEFENDANT ELECTED TO EXERCISE
HIS EIGHTH AMENDMENT RIGHT TO
A REASONABLE BAIL AND LITIGATE
A MOTION FOR REDUCED BAIL
G. TRIAL COUNSEL WAS
INEFFECTIVE BY ADVISING THE
DEFENDANT THAT IF HE TESTIFIED
AT TRIAL, THE STATE WOULD BE
PERMITTED TO USE HIS CRIMINAL
A-5207-17T1
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HISTORY TO IMPEACH HIS
CREDIBILITY
H. TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO
REQUEST AN ADVERSE INFERENCE
CHARGE FOR THE STATE'S LOSS
AND/OR DESTRUCTION OF
MATERIAL EVIDENCE
POINT II – THE DEFENDANT'S STATE AND
FEDERAL RIGHTS TO A FAIR TRIAL WERE
VIOLATED BY THE TRIAL COURT'S FAILURE TO
ENFORCE A SEQUESTRATION ORDER FOR ONE
OF THE STATE'S WITNESSES
POINT III – DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL
POINT IV – DEFENDANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF POST CONVICTION
RELIEF COUNSEL
POINT V – THE CUMULATIVE EFFECT OF THE
ERRORS COMPLAINED OF RENDERED THE
TRIAL UNFAIR
POINT VI – THE LOWER COURT ERRED IN
DENYING DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING
All but one of defendant's appellate arguments were presented to Judge
Wild. We reject the repeated arguments for the reasons explained by Judge Wild
in her well-reasoned opinion. In short, Judge Wild correctly analyzed each of
A-5207-17T1
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those arguments, applied the well-established law, and found that none of those
arguments satisfied the two prongs required to establish ineffective assistance
of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Fritz, 105 N.J. 42, 57-58 (1987). Having conducted a de novo review, we agree
with the conclusions reached by Judge Wild.
Defendant also presents one new argument; contending that his PCR
counsel was ineffective in two respects. First, defendant asserts that his PCR
counsel failed to retain a forensic video expert to support his petition. Second,
defendant contends that his PCR counsel was ineffective in not submitting to
the PCR court two letters he wrote on March 23, 2010 and April 18, 2010.
At trial, the State had presented a forensic video expert to explain how the
hotel surveillance video had been copied. In his PCR petition, defendant
contended that his trial counsel was ineffective in failing to retain an
independent expert to challenge the State's video expert. Judge Wild rejected
that argument because defendant had not presented any facts as to what such a
rebuttal expert would have contended and whether a defense expert could have
raised legitimate grounds for challenging the use of the video. Accordingly,
under established case law, Judge Wild rejected that argument. See State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
A-5207-17T1
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On appeal, defendant argues that his PCR counsel was ineffective in not
retaining a video expert. He also argues that his PCR counsel was ineffective in
not presenting two letters, which he argues would have shown that his trial
counsel was ineffective in not investigating the potential witness, Matthew
Hayes.
Neither of these new arguments satisfies either prong of the Strickland
test. 466 U.S. at 687; Fritz, 105 N.J. at 58. There is still no showing that a
defense video expert could have made any legitimate arguments to rebut the
State's expert. Moreover, the letters go to an issue that was considered and
rejected on direct appeal. Finally, there is no showing of prejudice. Defendant
was accorded a jury trial. The evidence at trial included testimony from two
eyewitnesses to the shooting, as well as the video. There was also strong
physical evidence in the form of clothing, the hat, and the SUV , all of which
linked defendant to the shooting. Defendant's arguments about ineffective
assistance of his PCR counsel do not undermine any of that strong evidence.
Affirmed.
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