NOT FOR PUBLICATION WITHOUT THE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-4292-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CANTREL C. SPARKS,
Defendant-Appellant.
_______________________
Submitted January 31, 2022 – Decided February 22, 2022
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 15-06-
0781.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Cantrel C. Sparks appeals from a March 30, 2020 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. On
appeal, defendant reprises the arguments raised before the PCR court, claiming
he was denied the effective assistance of both trial and appellate counsel. More
particularly, defendant raises the following points for our consideration:
POINT ONE
A. THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING TRIAL
COUNSEL'S FAILURE TO OBJECT TO THE
INTRODUCTION OF TESTIMONIAL HEARSAY
THAT [DEFENDANT] SHOT THE VICTIM.
B. THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING TRIAL
COUNSEL'S FAILURE TO OBJECT TO OFFICER
SAWYER'S EXPERT TESTIMONY THAT THE
INJURIES TO MR. GREEN WERE THE RESULT OF
A GUNSHOT WOUND.
C. THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING TRIAL
COUNSEL'S FAILURE TO REQUEST A
[1]
CLAWANS CHARGE.
D. THE PCR COURT ERRED IN DENYING
[DEFENDANT] AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING
1
State v. Clawans, 38 N.J. 162 (1962).
A-4292-19
2
APPELLATE COUNSEL'S FAILURE TO RAISE THE
ABOVE-STATED ISSUES ON DIRECT APPEAL.
We reject these contentions and affirm. But we remand for the limited purpose
of correcting the judgment of conviction (JOC).
We summarize the State's contentions at trial to lend context to trial
counsel's strategy, reiterating the facts set forth in our prior opinion:
The State contended that defendant and his
paramour and co-defendant, Nicole Zotolla, conspired
to rob the victim[, Larry Green]. Zotolla pled guilty to
a lesser offense and was the State's chief witness at trial.
She claimed to have accepted the victim's invitation to
meet for drinks. While she was out with the victim,
defendant called and was very upset. The victim
grabbed Zotolla's phone and told defendant "he wasn't
scared of him and . . . stop calling."
Unbeknownst to the victim, defendant had sent a
text message to Zotolla, telling her to drive the victim
to Zotolla's former residence, which was unoccupied at
the time, where defendant intended to assault and rob
the victim. When Zotolla and the victim arrived,
defendant was waiting in the driveway. The two men
ran towards each other and began to fight, with the
victim soon being on top of defendant. Zotolla saw the
victim with a gun, which he had shown her earlier at the
bar. Zotolla drove away and returned to her home
where she met Rachid Rosa, defendant's brother [and
co-defendant]. Rosa was "flustered" and told Zotolla
not to call police.
Zotolla testified that she spoke with defendant
after the incident, and he claimed the shooting was an
accident. Defendant said he tried to take the gun away
A-4292-19
3
from the victim, and the two were fighting over the gun
when it discharged. The prosecutor confronted Zotolla
with a prior statement she provided two weeks before
trial.
In that statement, Zotolla admitted being part of
a plan to rob the victim. She saw defendant and Rosa
attack the victim in the driveway before she drove
away. Zotolla also stated that defendant told her he and
the victim struggled over the victim's gun, and
defendant eventually took control of it and struck the
victim with the gun before it accidentally discharged,
hitting the victim in the forearm.
After the shooting, the victim knocked on the
door of a nearby home and told its occupant that he had
been shot. Pemberton police officer Shannon Sawyer
was dispatched to the scene, where she observed the
victim with a significant amount of blood on his
forehead and left arm and concluded he had been shot.
Police recovered a spent shell in the driveway of
Zotolla's former residence, as well as defendant's cell
phone. They also obtained data from Zotolla's and
defendant's cellphones that verified, through text
messages, defendant's instructions to Zotolla regarding
the robbery.
[State v. Sparks, No. A-0678-16 (App. Div. Jan. 11,
2018) (slip op. at 3-5) (footnotes omitted).]
Green did not testify at trial. During his opening statement, the prosecutor
told the jury Green "d[id] not want to participate." Seizing on the victim's
absence, trial counsel rhetorically asked the jury: "Who doesn't show up to his
own party?" Trial counsel postured Green would not testify because "he lied to
A-4292-19
4
the police. He lied about what turned out to be serious charges against
[defendant]. [Green lied] about a robbery. It wasn't a robbery, and Larry Green
is no angel." Emphasizing Green's absence again during her summation, trial
counsel argued defendant did not rob Green but merely engaged in a fight about
Zotolla, during which the gun accidentally discharged. Counsel reminded the
jury Green brought the gun to the scene.
The jury convicted defendant of four of the five offenses charged in a
Burlington County indictment: second-degree possession of a handgun for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b)(1); third-degree conspiracy, N.J.S.A. 2C:5-
2(a); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). Defendant
was acquitted of the most serious charge: first-degree robbery, N.J.S.A. 2C:15-
1(a)(1). After ordering the appropriate mergers on the weapons convictions,
defendant was sentenced to a seven-year prison term, with a parole disqualifier
of forty-two months under the Graves Act, N.J.S.A. 2C:43-6(c), on the
possession of a weapon for an unlawful purpose conviction; a concurrent five -
year prison term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on
the conspiracy conviction; and a concurrent five-year prison term on the
aggravated assault conviction.
A-4292-19
5
Appellate counsel thereafter raised two points challenging defendant's
convictions on the weapons offenses, and a third point contending his sentence
was excessive. Sparks, No. A-0678-16 (slip op. at 2-3). We reversed and
remanded defendant's convictions on both weapons offenses and vacated the
sentence imposed on those merged counts. Id. at 11-12. Accordingly, we did
not reach defendant's excessive sentencing argument. Id. at 12.
On remand, the sentencing judge reimposed the same concurrent five-year
prison terms on the aggravated assault and conspiracy convictions and dismissed
the weapons offenses. Defendant filed a direct appeal of his sentence, which
this court heard on an excessive sentencing calendar pursuant to Rule 2:9-11.
We affirmed defendant's sentence but remanded to correct defendant's JOC to
reflect 624 days of jail credit as consented to by the parties. 2 Sparks, No. A-
3704-17 (App. Div. Mar. 14, 2019), certif. denied, 238 N.J. 236 (2019).
Defendant timely filed a pro se petition for PCR and assigned counsel
filed a brief, expounding upon defendant's assertions. Pertinent to this appeal,
2
The record on appeal does not include the amended JOC. In a footnote of his
merits brief, defendant seeks a remand to amend the April 11, 2018 JOC to
reflect the award of jail credit. The amended JOC shall also reflect that
defendant was convicted of third-degree conspiracy, as charged in the
indictment and presented to the jury, and not second-degree conspiracy as
reflected in the April 11, 2018 JOC.
A-4292-19
6
defendant claimed trial counsel was ineffective for failing to object to hearsay
evidence and Sawyer's "unqualified expert testimony" that Green was shot
during the fight; and failing to request a Clawans charge regarding Green's
absence. Defendant further claimed appellate counsel was ineffective for failing
to raise trial counsel's deficiencies on direct appeal.
Following argument, the PCR judge reserved decision and shortly
thereafter issued a cogent written decision, denying all claims for relief. The
judge squarely addressed the issues raised in view of the governing
Strickland/Fritz 3 framework. Recognizing the jury acquitted defendant of "the
most serious count of the indictment" and both firearms convictions were
reversed on appeal, the PCR judge was not convinced the performance of trial
or appellate counsel was deficient.
Instead, the PCR judge determined trial counsel's performance and
decision-making were consistent with her trial strategy. The judge elaborated:
Trial counsel's strategy was to establish that
[defendant] did not commit a robbery, but instead, that
there was a fight between two men over a woman,
initiated by [defendant,] who was jealous that his
3
Strickland v. Washington, 466 U.S. 668, 687 (1984) (recognizing to establish
an ineffective assistance of counsel claim, a defendant must demonstrate: (1)
"counsel's performance was deficient"; and (2) "the deficient performance
prejudiced the defense"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-part test in New Jersey).
A-4292-19
7
girlfriend was at a bar with the victim. Trial counsel
also argued that the victim had the gun and brought it
with him to the confrontation, and that later the victim
made up a story about a supposed robbery to cover up
that he possessed a handgun.
To be consistent with this defense theory at trial,
trial counsel did not object to certain testimony
regarding the weapon, injuries to the victim, and other
matters, acting in a coherent fashion in presenting the
defense's case. All of the actions of trial counsel fit in
with the same theory of defendant's case, which the
[c]ourt determines was more than adequate assistance
of counsel.
Citing controlling precedent, the PCR judge concluded trial counsel
employed a strategy that "had a logical basis and consistency, which should not
be second guessed." See State v. Castagna, 187 N.J. 293, 316 (2006) (declining
to find the defendant demonstrated a prima facie showing of ineffective
assistance of counsel where his trial counsel engaged in the "high-risk strategy
of admitting [the defendant]'s guilt to lesser-included offenses in the hope that
it would enhance [the defendant]'s credibility"); State v. Arthur, 184 N.J. 307,
333 (2005) (affirming trial counsel's decision not to call certain witnesses "based
on his assessment of the effectiveness" of proffered testimony favorable to the
defendant and counsel's "justifiable concern" with undermining that testimony);
see also Strickland, 466 U.S. at 690 (recognizing informed strategic choices "are
virtually unchallengeable"); State v. Coruzzi, 189 N.J. Super. 273, 321 (App.
A-4292-19
8
Div. 1983) (observing trial strategy is clearly within the discretion of competent
trial counsel). Although the judge was not convinced Sawyer's testimony
included inadmissible hearsay 4 or that her assessment of the victim's wounds
was grounded in improper expert opinion, the judge found that evidence was
consistent with defendant's trial strategy.
The PCR judge also rejected defendant's Clawans argument, finding it was
unlikely the trial court would have issued an adverse inference instruction
pursuant to the factors set forth in State v. Hill, 199 N.J. 545, 561 (2009). The
judge was most persuaded that Green was not "subject to the power or control
of the State." See ibid. The judge also found Green's testimony at trial would
not have supported defendant's argument that there was no robbery and
defendant never possessed the gun.
Similarly, the PCR judge rejected defendant's contentions that appellate
counsel was ineffective, aptly recognizing "appellate counsel is not required to
4
On this record, it is unclear whether the victim's statement that he was shot
constituted hearsay exceptions pursuant to N.J.R.E. 803(c)(1) (present sense
impressions) or N.J.R.E. 803(c)(2) (excited utterances), as the PCR judge found.
Instead, we are persuaded, as was the PCR judge, that the admission of hearsay
defendant now finds objectionable was consistent with trial counsel's sound
strategy. Trial strategy that fails to obtain the optimal outcome for a defendant
is insufficient to show that counsel was ineffective. State v. DiFrisco, 174 N.J.
195, 220 (2002).
A-4292-19
9
raise every non-frivolous issue on appeal." Applying the principles enunciated
by the United States Supreme Court in Jones v. Barnes, the judge found no
reason to second guess appellate counsel's decision to raise only the deficiencies
in the jury instructions pertaining to the weapons convictions. 463 U.S. 745,
751-52 (1983) (recognizing "[e]xperienced advocates since time beyond
memory have emphasized the importance of winnowing out weaker arguments
on appeal and focusing on one central issue if possible, or at most on a few key
issues"). As the PCR judge recognized, appellate counsel prevailed on the
claims asserted on direct appeal.
Having considered defendant's reprised contentions in view of the
applicable law, we are satisfied he failed to satisfy the Strickland/Fritz test.
Because there was no prima facie showing of ineffective assistance of counsel,
an evidentiary hearing was not necessary to resolve defendant's PCR claims.
See State v. Preciose, 129 N.J. 451, 462 (1992). We therefore conclude
defendant's contentions lack sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
expressed in the PCR judge's cogent decision.
Affirmed, but remanded for the limited purpose of correcting the JOC.
A-4292-19
10