STATE OF NEW JERSEY VS. VINCENT LAING (11-01-0018, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5519-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VINCENT LAING a/k/a
VINCENT C. LAING,

Defendant-Appellant.
_________________________

Submitted October 5, 2020 -Decided December 18, 2020

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 11-01-
0018.

Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM

Defendant, Vincent Laing, appeals from an April 11, 2019 order denying

his petition for post-conviction relief (PCR). Defendant argues that his trial

counsel rendered ineffective assistance. Judge Dennis R. O'Brien entered the

order without conducting an evidentiary hearing and rendered an oral opinion.

After carefully reviewing the record in light of the applicable legal principles,

we affirm.

The charges arose from a fatal motor vehicle accident. Defendant was

operating his vehicle at a high speed when he crossed the center line and collided

head-on with an elderly victim. The elderly victim was pronounced dead at the

scene. Later that evening, defendant admitted to police he had ingested

Roxicodone and Xanax. He told police the drugs had been provided to him for

pain management by his physician. Blood tests taken at the hospital confirmed

that these drugs were in his system at the time of the fatal crash.

A jury found defendant guilty of second-degree vehicular homicide,

N.J.S.A. 2C:11-5(a), and third-degree unlawful possession/use of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1). He was sentenced on his

homicide conviction to an extended term of eleven years in prison, subject to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed a

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concurrent five-year term on the CDS conviction. On direct appeal we upheld

the convictions and sentence, State v. Laing, No. A-0289-14T2 (App. Div. May

17, 2017), and the Supreme Court denied certification, State v. Laing, 231 N.J.

319 (2017). Defendant thereafter filed a pro se petition for PCR. On April 11,

2019, the PCR judge entered the order under review.

On appeal, defendant argues:

POINT I

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL WHEN COUNSEL TOLD HIM TO LIE ON THE WITNESS
STAND REGARDING THE SOURCE OF THE XANAX, WHEN
COUNSEL LIED ABOUT THE AVAILABILITY OF AN EXPERT
WITNESS, AND WHEN COUNSEL PREVENTED HIM FROM
PRESENTING A DEFENSE AT TRIAL.

a. APPLICABLE LAW

b. COUNSEL WAS INEFFECTIVE FOR TELLING THE
DEFENDANT TO LIE ON THE WITNESS STAND THEREBY
PREVENTING HIM FROM PRESENTING A VALID DEFENSE.

We disagree and affirm primarily for the reasons given by Judge O'Brien. We

add the following remarks.

Both the Sixth Amendment of the United States Constitution and Article

1, paragraph 10 of the State Constitution guarantee the right to effective

assistance of counsel at all stages of criminal proceedings. Strickland, 466 U.S.

668, 686 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

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In order to demonstrate ineffectiveness of counsel, "[f]irst, the defendant must

show that counsel's performance was deficient. . . . [s]econd, the defendant must

show that the deficient performance prejudiced the defense." Strickland, 466

U.S. at 687. In State v. Fritz, our Supreme Court adopted the two-part test

articulated in Strickland. 105 N.J. 42, 58 (1987).

To meet the first prong of the Strickland test, a defendant must show "that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed by the Sixth Amendment." 466 U.S. at 687. Reviewing courts

indulge in a "strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance." Id. at 689. The fact that a trial

strategy fails to obtain for a defendant the optimal outcome is insufficient to

show that counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002)

(citing State v. Bey, 161 N.J. 233, 251 (1999)).

The second prong of the Strickland test requires the defendant to show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently,

counsel's errors must create a "reasonable probability" that the outcome of the

proceedings would have been different if counsel had not made the errors. Id.

at 694.

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 Short of obtaining immediate relief, a defendant may prove that an

evidentiary hearing is warranted to develop the factual record in connection with

an ineffective assistance claim. State v. Preciose, 129 N.J. 451, 462–63 (1992).

A defendant is entitled to an evidentiary hearing when (1) he is able to prove a

prima facie case of ineffective assistance of counsel, (2) there are material issues

of disputed fact that must be resolved with evidence outside of the record, and

(3) the hearing is necessary to resolve the claims for relief. Id. at 462; R. 3:22-

10(b). To meet the burden of proving a prima facie case, a defendant must show

a reasonable likelihood of success under the Strickland test. Id. at 463.

Defendant contends his trial counsel rendered ineffective assistance by

urging him to lie about his physician's role with respect to the Xanax. Defendant

claims trial counsel wanted to use defendant's physician as a scapegoat because

the physician purportedly was under indictment. 1 At trial, defendant testified

that the doctor gave him the Xanax in an unmarked pill bottle. Defendant now

argues that his trial testimony was not true. Moreover, defendant asserts that

1
Defendant's brief notes that: "[i]t was counsel's plan to use [defendant's
physician] as a scapegoat to defendant's possession of the medication because
the doctor, who was currently under indictment, would have compromised
credibility."
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counsel advised him to commit perjury, which precluded him from testifying

that he had not ingested Xanax before driving.

The problem with defendant's argument is two-fold: first, he has presented

no evidence, aside from his self-serving certification, that his counsel suborned

perjury. Second, these post-trial accusations fly in the face of the admissions

defendant made to police on the night of the fatal collision, which we note are

otherwise consistent with defendant's trial testimony.

The PCR court thus properly rejected defendant's contention, explaining

[i]n regard to the allegation that trial counsel told him
to lie about the method by which he obtained the Xanax,
petitioner has merely put forth – put forth his own
evidence to support the contention. He has not
provided the Court with an affidavit from [the doctor]
or trial counsel to support the contention. Furthermore,
even if the Court were to find the performance was
deficient on this issue, he's not established that that
performance prejudiced the defense. . . . The Court
finds the State's narrative more persuasive. The
petitioner lied about how he obtained the Xanax
because he was well aware he did not have a valid
prescription for it.

The PCR judge added,

it wouldn't have made a difference because he [trial
counsel] was stuck with what he [defendant] had
already given the police. That is all he had to work
with, all that counsel had to work with. There's no way
to get around that. And the Court finds that that does
not make a difference in the ultimate result here.

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We agree with the PCR court's rationale and conclusion. Defendant told police

he had taken Xanax and that his physician was the source of the medication long

before counsel was assigned to the case.

Defendant next accuses his trial counsel of lying to the trial court by

claiming the toxicology expert she initially planned to use was not available.

Defendant posits that counsel used another toxicologist instead because she had

a preexisting professional relationship with him. This claim lacks sufficient

merit to warrant extensive discussion. R. 2:11-3(e)(2). The PCR court

concluded that defendant's allegation that counsel lied to the trial court was little

more than a bald assertion. The PCR judge determined that the initial expert

was replaced because he was difficult to contact. As such, trial counsel's

decision to replace him with another expert was a legitimate decision regarding

trial strategy. The fact counsel already had a professional relationship with the

replacement expert is hardly grounds for relief. We decline to second guess trial

counsel's strategic decision with respect to the selection of an expert witness,

recognizing that "a defense attorney's decision concerning which witnesses to

call to the stand is 'an art,'" and "review of such decision[s] should be 'highly

deferential.'" State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466

U.S. at 693, 689).

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 Even were we to accept for purposes of argument that counsel

misrepresented to the trial court why she was replacing the initial expert,

defendant has failed to show how he was prejudiced. The PCR court noted that

the expert who ultimately testified on defendant's behalf was "more qualified,"

and "more universally respected by both [the] State and defense." The PCR

judge added that the replacement expert had testified in twenty-seven published

cases in New Jersey and fifty-seven unpublished cases, whereas the initial expert

had appeared in only three published cases and fourteen unpublished cases.

Resting on these findings of fact, the PCR court concluded that the qualifications

of the expert who ultimately testified at trial exceeded those of the toxicologist

he replaced.

Finally, defendant argues that his counsel prevented him from presenting

a valid defense by suborning perjury with respect to the source of the Xanax and

by lying to the trial court with respect to the unavailability of the toxicology

expert. Defendant contends the PCR court "compartmentaliz[ed] defense

counsel's action," and thereby "failed to consider defendant's argument in total

assessing the threshold for compelling an evidentiary hearing." We view these

vague contentions as a form of cumulative error argument and disagree. We

acknowledge that "courts should view the facts in the light most favorable to a

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defendant to determine whether a defendant has established a prima facie claim."

Preciose, 129 N.J. at 462–63. However, that principle does not support

defendant's suggestion that in making an evidentiary hearing threshold

evaluation, we should construe these two implausible arguments together as a

synergistic whole that is somehow greater than the sum of its parts.

We agree with the PCR court that counsel did not prevent defendant from

presenting a viable defense at trial. In applying the first prong of Strickland

analysis, we defer to counsel's strategic decisions. State v. Petrozelli, 351 N.J.

14, 21–22 (App. Div. 2002). In this instance, the strategy options available to

defendant's trial counsel were wholly constrained by the incriminating

admissions defendant made to police long before she began representing

defendant. Defendant has failed to establish, moreover, the verdict would

probably have been different had he testified that he lied to the police about

ingesting CDS before driving. In sum, none of defendant's contentions, whether

viewed individually or collectively, establish a prima facie case of ineffective

assistance to warrant an evidentiary hearing much less a new trial.

Affirmed.

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