NOT FOR PUBLICATION WITHOUT THE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-1513-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRI BAILEY, a/k/a
TERRI FRANKLIN, TERRY
BAILEY, and DAVID D. JONES,
Defendant-Appellant.
_____________________________
Argued November 29, 2021 – Decided January 31, 2022
Before Judges Messano and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 18-08-1277.
Al Glimis, Designated Counsel, argued the cause for
appellant (Joseph E. Krakora, Public Defender,
attorney; Al Glimis, on the brief).
Steven K. Cuttonaro, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Steven K. Cuttonaro, of
counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
An Atlantic County grand jury returned an indictment charging defendant
Terri Bailey with second-degree unlawful possession of a handgun without a
permit, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree obstructing the
administration of law, N.J.S.A. 2C:29-1(a) (count two); fourth-degree resisting
arrest, N.J.S.A. 2C:29-2(a)(2) (count three); second-degree certain persons not
to possess a firearm, N.J.S.A. 2C:39-7(b) (count four); and first-degree unlawful
possession of a handgun by an individual with a prior conviction for a crime
enumerated in N.J.S.A. 2C:43-7.2(d),1 N.J.S.A. 2C:39-5(j) (subsection (j))
(count five). At trial, before the jury was selected, the State dismissed counts
one through four without objection.
The jury convicted defendant of the remaining count, and the State moved
to sentence him as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The
judge granted the State's motion and sentenced defendant to an extended,
1
N.J.S.A. 2C:43-7.2 is the No Early Release Act, commonly referred to as
NERA.
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2
twenty-five-year term of imprisonment, with a twelve-and-one-half year period
of parole ineligibility. 2
Defendant raises the following points for our consideration:
POINT I
THE REPEATED REFERENCE TO THE
UNSANITIZED DETAILS OF MR. BAILEY'S
PREDICATE CONVICTION DEPRIVED HIM OF A
FAIR TRIAL. (Partially raised below)
POINT II
MR. BAILEY'S SENTENCE IS MANIFESTLY
EXCESSIVE AND UNDULY PUNITIVE 3
In a supplemental pro se brief, defendant makes the following arguments:
POINT ONE
THE DEFENDANT DOES NOT HAVE A
PREDICATE NERA CONVICTION AS REQUIRED
BY N.J.S.A. 2C:39-5(j), THUS HIS CONVICTION
AND SENTENCE VIOLATES THE UNITED
STATES CONSTITUTION V, VI, VIII, AND XIV
AMENDMENTS, AND THE NEW JERSEY STATE
CONSTITUTION ART. 1, PAR. 10[.] (Not raised
below)
2
The State also moved pursuant to N.J.S.A. 2C:43-6(c), which mandates an
extended term of imprisonment for a defendant convicted of certain Chapter 39
crimes if previously convicted of certain crimes enumerated in N.J.S.A. 2C:44 -
3(d). The judge denied this motion, finding subsection (j) was not one of the
Chapter 39 crimes enumerated in N.J.S.A. 2C:43-6(c).
3
We omitted the subpoints in defendant's brief.
A-1513-19
3
POINT TWO
BECAUSE THE DEFENDANT WAS NOT TRIED OR
CONVICTED FOR A VIOLATION OF SUBSECTION
(a), (b), (c), or (f) OF N.J.S.A. 2C:39-5(j), WHICH IS
A REQUISITE COMPONENT OF THE STATUTE[,]
HIS CONVICTION AND SENTENCE SHOULD BE
VACATED[.] (Not raised below)
POINT THREE
THE DEFENDANT WAS DENIED HIS DUE
PROCESS RIGHTS TO A FAIR TRIAL BECAUSE
SERGEANT MOYNIHAN TESTIFIED THAT A
STILL PHOTOGRAPH OF THE PERPETRATOR
OBTAINED FROM THE VIDEO SURVEILLANCE
FOOTAGE WAS THE DEFENDANT WHEN THE
IDENTITY OF THE PERSON WAS A QUESTION
SOLELY FOR THE JURY THEREFORE THE
CONVICTION SHOULD BE REVERSED[.]
(Partially raised below)
POINT FOUR
THE DEFENDANT WAS DEPRIVED OF
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
WHEN SHE ENTERED INTO A STIPULATION
THAT CONCEDED THE DEFENDANT'S GUILT TO
THE REQUISITE ELEMENTS OF THE CHARGED
OFFENSE, AND SHE FAILED TO SUBJECT THE
STATE'S CASE TO AN ADVERSARIAL TESTING
THEREFORE THE CONVICTION SHOULD BE
REVERSED[.] (Not raised below)
We have considered these arguments in light of the record and applicable legal
standards. We affirm defendant's conviction and sentence. However, we
A-1513-19
4
remand the matter to the trial court to immediately conduct a hearing on
defendant's claim of ineffective assistance of trial counsel.
I.
Before opening statements, the prosecutor and defense counsel advised
the judge of two stipulations for her to read to the jury. The parties stipulated
defendant "did not have a permit to possess a weapon" on the day in question.
The second stipulation was that defendant "ha[d] a prior conviction of [an]
enumerated crime in N.J.S.A. 2C:43-7.2, that being kidnapping in the first
degree with a date of conviction of November 9th, 1989." The judge asked:
"So, you're not going to be introducing any judgment of conviction . . . ?" The
prosecutor said she still intended to introduce a redacted version. Defense
counsel seemed surprised, stating, "I thought that was the whole point of the
stipulation."
Defense counsel told the judge the "certified copy of the judgment of
conviction does not delineate the degree of the offense so the stipulation should
not either." When the prosecutor pointed out the "degree" was referenced on
the second page of the certified copy, defense counsel said she no longer had
any objection. Counsel then noted the certified copy contained the "penalties"
associated with defendant's sentence, and the prosecutor agreed to redact those
A-1513-19
5
from the document. After further colloquy, defense counsel reiterated that she
only objected to inclusion of the "fines and penalties page" of the certified
judgment of conviction.4
In her preliminary instructions, the judge told the jury that the parties
stipulated defendant was "previously . . . convicted of . . . kidnapping in the first
degree with a date of conviction of November 9th, 1989." She also told the jury
that it would have "a judgment of conviction which actually will depict the
information I just gave you . . . in the jury room for your deliberations." In her
opening statement, the prosecutor reiterated defendant's prior conviction was for
kidnapping; in her opening statement, defense counsel acknowledged that fact,
but told jurors the only relevant issue in the case was identification.
The trial testimony was brief. On March 29, 2018, around 4:52 p.m.,
Police Officer Thomas Moynihan of the Atlantic City Police Department was
dispatched to an address in response to a ShotSpotter alert. While canvassing
the area, Moynihan received information that a black male with dreadlocks and
a silver car were involved. Moynihan saw three men, one of whom matched the
description, near a silver car. At trial, he identified defendant as one of these
4
Defendant's 1989 judgment of conviction for kidnapping is not in the appellate
record.
A-1513-19
6
men. Moynihan said on that day, defendant was wearing a gray "hoodie" and
black and white baseball cap.
Moynihan observed the men "for a few moments" before approaching. He
saw defendant "reach around his waistband, around his hoodie pockets," and
Moynihan instructed him to remove his hands from his pockets and stop moving.
Defendant refused to comply and "took off running." Moynihan followed.
During the chase, Moynihan heard "something hit the ground," and another
officer who joined the pursuit, Thomas Gilardi, testified that he saw an
automatic handgun fall from the fleeing man's waistband. Gilardi's bodycam
video footage documented his recovery of the weapon, and the video was played
for the jury. The officers lost the suspect who ran through the entrance gate of
and into a housing site; they were unable to locate him.
Moynihan reviewed video surveillance footage in the housing site's
security booth near the gate, as well as video from a surveillance camera at a
nearby school. Moynihan took still photos of the security booth's video, which
he identified for the jury as showing defendant. The officer also identified for
the jury the school's video footage. It showed Moynihan approaching three men
on the sidewalk, the officer patting down one of the men, and one of the other
men fleeing down the sidewalk with Moynihan in pursuit.
A-1513-19
7
About ninety minutes later, after speaking with other officers, Moynihan
was able to "put the face" of the person he chased to "the name." Several days
later, on April 5, 2018, Detective Ermindo Marsini was on surveillance at a
location where he believed defendant might be and arrested him.
Michael Holts testified for the defense. Holts was working as a security
guard at the housing site on the day in question. He testified defendant was
present at the site before police arrived. Holts said defendant was wearing black
and gold clothing emblematic of Holts' favorite football team, the Pittsburgh
Steelers, not a gray hoodie like the man depicted in the video and described by
Officer Moynihan. Another defense witness, Donette Faulkner lived next door
to defendant's mother at the housing site, where Faulkner also worked in the
security booth. Faulkner testified that when police arrived to look at the video
surveillance footage and were in the security booth with her, defendant was
present at the site and walked out of the entrance gate.
In summation, defense counsel argued that defendant was not the person
shown in the surveillance videos and not the person Moynihan chased. She only
briefly mentioned the predicate offense of kidnapping, noting defendant was a
juvenile when convicted of that crime. The prosecutor's summation referenced
defendant's kidnapping conviction more frequently, but without particular
A-1513-19
8
emphasis. The judge's final instructions tracked the model charge. See Model
Jury Charges (Criminal), "Unlawful Possession of a Handgun Prior NERA
Conviction (First Degree) (N.J.S.A. 2C:39-5(j))" (approved June 11, 2018) (the
Model Charge). During the charge, the judge told the jury several times that
defendant's predicate NERA conviction was kidnapping.
II.
Before turning to the arguments raised in Point I of counsel's brief, and
Point Four of defendant's pro se brief, we briefly address the remaining points
on appeal, none of which merit reversal. Defendant claims he was not
previously convicted of a requisite predicate crime under subsection (j) because
he was convicted of kidnapping in 1989, before NERA was enacted. In pertinent
part, subsection (j) makes it a first-degree crime for anyone previously convicted
of a crime listed in subsection (d) of NERA to unlawfully possess a handgun.
Subsection (j) does not refer to NERA at all; it only requires that a defendant be
previously convicted of a crime listed in N.J.S.A. 2C:43-7.2(d). Defendant was
convicted of kidnapping, N.J.S.A. 2C:13-1, a crime enumerated in subsection
(d) of NERA. Those facts are undisputed. The argument requires no further
discussion. R. 2:11-3(e)(2).
A-1513-19
9
Defendant contends the jury never convicted him of unlawful possession
of a handgun pursuant to N.J.S.A. 2C:39-5(b), one offense for which a
conviction is necessary to prove a violation of subsection (j). Even though the
State dismissed count one of the indictment, it introduced proof of all the
elements of unlawful possession, and the judge's charge instructed the jury that
it must find beyond a reasonable doubt: (1) there was a handgun, (2) defendant
knowingly possessed the handgun, (3) defendant did not have a permit to possess
the handgun, and (4) defendant had a prior conviction of an enumerated offense
under N.J.S.A. 2C:43-7.2(d), in this case, kidnapping. The argument requires
no further discussion. R. 2:11-3(e)(2).
Defendant argues that Moynihan's testimony identifying him as the man
in the video stills and surveillance footage was impermissible lay opinion .
Because there was no objection, we review the argument for plain error. R.
2:10-2.
"Lay opinion is admissible 'if it falls within the narrow bounds of
testimony that is based on the perception of the witness and that will assist the
jury in performing its function.'" State v. Sanchez, 247 N.J. 450, 466 (2021)
(quoting State v. Singh, 245 N.J. 1, 14 (2021)). In Sanchez, the Court held the
defendant's parole officer "became familiar with defendant's appearance by
A-1513-19
10
meeting with him on more than thirty occasions during his period of parole
supervision. Her identification of defendant as the front-seat passenger in the
surveillance photograph was 'rationally based on [her] perception,' as N.J.R.E.
701 requires." Id. at 469 (alteration in original). The Court also concluded the
parole officer's opinion would assist the jury, because her "contacts with
defendant were more than sufficient to enable her to identify him in the
surveillance photograph more accurately than a jury could." Id. at 474.
The same is true in this case. Moynihan can be seen in the school
surveillance video approaching a group of three men, one of whom he testified
was defendant. After being in close proximity with defendant, albeit briefly,
Moynihan identified the man seen running away as defendant. Moynihan chased
that man, who entered a housing site through a security gate; Moynihan viewed
video footage shortly thereafter, taking still photographs of that footage to
preserve its images. He testified the man seen in those photographs was
defendant, who Moynihan identified in court. There was no error in admitti ng
this testimony.
Lastly, we find no reason to reverse defendant's sentence. An appellate
court reviews a sentence "in accordance with a deferential standard." State v.
Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Fuentes, 217 N.J. 57, 70
A-1513-19
11
(2014)). We defer to the sentencing court's factual findings and should not
"second-guess" them. State v. Case, 220 N.J. 49, 65 (2014). An appellate court
must affirm a sentence "even if [it] would have arrived at a different result, as
long as the trial court properly identifies and balances aggravating and
mitigating factors that are supported by competent credible evidence in the
record." State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214
N.J. 594, 606 (2013)).
The judge found aggravating factors three, six and nine. See N.J.S.A.
2C:44-1(a)(3) (the risk of re-offense); (a)(6) (defendant's prior criminal history);
and (a)(9) (the need to deter defendant and others). These were amply supported
by evidence in the record, including defendant's prior criminal convictions and
history of juvenile delinquency. The judge found no mitigating factors. She
concluded the aggravating factors "clearly and substantially outweigh[ed] the
non-existing mitigating factors," and, citing State v. Pierce, 188 N.J. 155 (2006),
she determined a discretionary extended term was appropriate.
Defendant contends the judge erred in failing to find mitigating factor
eleven, N.J.S.A. 2C:44-1(b)(11), that his imprisonment would result in an
excessive hardship to his family. However, the judge did consider that factor
and concluded while "any type of incarceration by any defendant is a hardship,"
A-1513-19
12
there was nothing presented demonstrating a particular hardship in this case.
We agree.
While this sentence was harsh, defendant was convicted of a first-degree
crime, was indisputably eligible for an extended term as a persistent offender,
and the sentence imposed does not shock our judicial conscience. State v.
Tillery, 238 N.J. 293, 323 (2019).
III.
In Point I, defendant contends it was error to permit the jury to know the
"unsanitized details" of his prior conviction. In his pro se brief, defendant
contends trial counsel provided ineffective assistance because she stipulated to
a prior conviction in the first place and did not put the State to its proofs. The
State argues defendant is barred from raising this argument since counsel agreed
to the stipulation and admission of the redacted judgment of conviction.
Alternatively, the State contends any error was harmless.
We are unaware of any reported case addressing subsection (j), which was
enacted in 2013. The statute's structure is similar to the "certain persons" statute,
N.J.S.A. 2C:39-7(b)(1), which makes it a second-degree crime for any person
previously convicted of certain crimes, including kidnapping, to "purchase[],
A-1513-19
13
own[], possess[] or control[]" a firearm.5 The model jury charges for both
crimes are virtually identical. We therefore look to case law developed under
N.J.S.A. 2C:39-7(b)(1) in addressing defendant's arguments.
Frequently, as in this case, a defendant indicted for violating the certain
persons statute is also charged in the same indictment for the possessory
weapons offense. In those circumstances, the trial must be bifurcated , with the
jury first considering guilt as to the possessory offense without being tol d of the
prior predicate conviction. See State v. Ragland, 105 N.J. 189, 194 (1986)
("Severance is customary and presumably automatic where it is requested
because of the clear tendency of the proof of the felony conviction to prejudice
trial of the separate charge of unlawful possession of a weapon." (emphasis
added)). However, in State v. Brown, the Court held that when the State
dismisses the possessory offense and tries the defendant solely on the certain
persons count, bifurcation is unnecessary. 180 N.J. 572, 582 (2004). Critically,
to ameliorate "any potential for prejudice," the Court required "sanitization of
the predicate offense." Id. at 584. The Court held: "if defendant stipulates to
the offense, the jury need be instructed only that defendant was convicted of a
5
As noted, defendant was indicted for violating N.J.S.A. 2C:39-7(b) in the
dismissed count four of the indictment.
A-1513-19
14
predicate offense. If the defendant does not stipulate, then the trial court should
sanitize the offense or offenses and limit the evidence to the date of the
judgment." Id. at 585.
After Brown, the certain persons model charge was amended:
In explaining what crimes are set forth as
predicate offenses in N.J.S.A. 2C:39-7(b), the model
jury charge further explains how to sanitize the record
of a defendant's predicate offense. Specifically, the
charge notes:
Unless the defendant stipulates, the prior
crimes should be sanitized. Thus, the trial
court should refer to them as crime(s) of
the appropriate degree. For example, if the
offense were aggravated sexual assault, the
court would indicate that defendant
previously was convicted of a crime of the
first degree. Nothing prevents a defendant,
however, from choosing to inform the jury
of the name of the prior crime of which
he/she was convicted.
[State v. Bailey, 231 N.J. 474, 487 (2018) (quoting
Model Jury Charges (Criminal), "Certain Persons Not
to Have Any Firearms (N.J.S.A. 2C:39-7(b)(1)" at 1 n.4
(rev. June 13, 2005)).]
In Bailey, the defendant refused to stipulate to the predicate offense, and
hewing closely to the guidance in Brown and the model charge, the judge
redacted the predicate judgments of conviction "so as to include only the date
and degree of each offense." 231 N.J. at 478–79 (2018). On appeal, we found
A-1513-19
15
the continued use of the model charge "disquieting," because the State
introduced "no proof of any predicate crime"; nonetheless, we affirmed the
defendant's conviction finding any error was invited. Id. at 480.
The Court reversed, holding "[t]he over-sanitization called for in the
model charge inject[ed] a constitutional defect into any trial on a certain persons
offense where a defendant declines to stipulate," because it relieved the State of
"prov[ing] that the defendant was convicted of an enumerated predicate offense
and later possessed a firearm." Id. at 488. The Court explained:
If a defendant chooses to stipulate, evidence of
the predicate offense is extremely limited: "[t]he most
the jury needs to know is that the conviction admitted
by the defendant falls within the class of crimes that . . .
bar a convict from possessing a gun[.]" A defendant
who stipulates can therefore prevent the State from
presenting evidence of the name and nature of the
offense. Provided that the stipulation is a knowing and
voluntary waiver of rights, placed on the record in
defendant's presence, the prosecution is limited to
announcing to the jury that the defendant has
committed an offense that satisfies the statutory
predicate-offense element.
[Ibid. (alterations in original) (emphasis added)
(quoting Old Chief v. United States, 519 U.S. 172, 190–
91 (1997)).]
However, "[w]hen a defendant refuses to stipulate to a predicate offense under
the certain persons statute, the State shall produce evidence of the predicate
A-1513-19
16
offense: the judgment of conviction with the unredacted nature of the offense,
the degree of offense, and the date of conviction." Id. at 490–91. The Court
also concluded the invited error doctrine did not apply "because the error cut
mortally into defendant's due process right to have the jury decide each element
beyond a reasonable doubt." Id. at 490. The Court referred the matter to its
Committee on Model Criminal Jury Charges for revision. Id. at 491.
The Committee's action was swift. The current certain persons model jury
charge provides: "If defendant is stipulating to the predicate offense, do not
read the crime listed in the Certain Persons count." Model Jury Charges
(Criminal), "Certain Persons Not To Have Any Firearms (N.J.S.A. 2C:39-
7(b)(1))" at 1 n.3 (revised Feb. 12, 2018) (emphasis added). Citing Brown and
Bailey, the charge now instructs judges
if defendant stipulates to the offense, the jury must be
instructed only that defendant was convicted of a
predicate offense[]. Defendant’s stipulation must be a
knowing and voluntary waiver of rights, placed on the
record in defendant’s presence; the prosecution is
limited to announcing to the jury that the defendant has
committed an offense that satisfies the statutory
predicate-offense element.
[Ibid. n.6 (emphasis added).]
A-1513-19
17
The model charge for subsection (j), however, only provides the following
footnote: "If defendant is stipulating to the predicate offense, do not read the
crime listed in the Certain Persons count." Id. at 1 n.1.
We have long recognized that in a prosecution under N.J.S.A. 2C:39-7(b),
the court must permit a defendant to stipulate to the predicate conviction. State
v. Alvarez, 318 N.J. Super. 137, 152–54 (App. Div. 1999); see also Old Chief,
519 U.S. at 191 (holding "it was an abuse of discretion to admit the record when
an admission was available"). As future Justice Virginia A. Long wrote for our
court, "[t]he specifics of defendant's prior crimes have no evidentiary
significance beyond a stipulation that defendant falls within the class of
offenders our Legislature thought should be barred from possessing weapons."
Alvarez, 318 N.J. Super. at 153. See Bailey, 231 N.J. at 488 ("[T]he prosecution
is limited to announcing to the jury that the defendant has committed an offense
that satisfies the statutory predicate-offense element."). We see no principled
reason why these same tenets should not apply to prosecutions under subsection
(j).
In this case, however, defense counsel both stipulated that defendant had
previously been convicted of a predicate crime enumerated in N.J.S.A. 2C:43 -
7.2(d) and agreed the jury would be told of the specific crime, kidnapping in the
A-1513-19
18
first degree. Additionally, despite entering a stipulation, counsel only voiced
limited objection to introduction of the actual judgment of conviction in
evidence, redacted only to delete the "penalties" imposed; during deliberations
therefore, the jury had a document stating defendant had been convicted of first-
degree kidnapping in 1989.
Undoubtedly, the judge's failure to "sanitize" defendant's kidnapping
conviction does not provide a basis to reverse because any error in that regard
was invited. See State v. A.R., 213 N.J. 542, 561 (2013) ("Under that settled
principle of law, trial errors that 'were induced, encouraged or acquiesced in or
consented to by defense counsel ordinarily are not a basis for reversal on
appeal.'" (quoting State v. Corsaro, 107 N.J. 339, 345 (1987))). And, unlike
Bailey, defense counsel's decision in this case did not relieve the prosecutor of
the requirement to prove all elements of the offense, a structural error that the
Court in Bailey held could not be harmless. As the State argued before us,
defendant was free to stipulate and free to choose what that stipulation would
be.
Defendant's argument in his pro se brief that trial counsel provided
ineffective assistance because she agreed to stipulate to a qualifying predicate
crime lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-
A-1513-19
19
3(e)(2). Counsel's decision to stipulate, particularly when the State had a
judgment of conviction available for introduction in evidence, made eminent
good sense; not so, however, as to counsel's decision to agree to a stipulation
that identified the predicate crime and not object to admission of the redacted
judgment of conviction that included the same information.
"Generally, ineffective assistance of trial counsel claims are not
entertained 'on direct appeal because such claims involve allegations and
evidence that [normally] lie outside the trial record.'" State v. Veney, 409 N.J.
Super. 368, 386–87 (App. Div. 2009) (alteration in original) (quoting State v.
Castagna, 187 N.J. 293, 313 (2006)). "However, when the trial itself provides
an adequately developed record upon which to evaluate defendant's claims,
appellate courts may consider the issue on direct appeal." Ibid. (quoting
Castagna, 187 N.J. at 313). As in Veney, we largely agree that this is such a
case.
To prevail on an ineffective assistance of counsel (IAC) claim, a defendant
must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S.
668, 694 (1984), and recognized by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987). A defendant must first show "that counsel made errors so
serious that counsel was not functioning as the 'counsel' guaranteed . . . by the
A-1513-19
20
Sixth Amendment." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687).
As to this prong, "there is 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance,' [and t]o rebut that
strong presumption, a defendant must establish that trial counsel's actions did
not equate to 'sound trial strategy.'" Castagna, 187 N.J. at 314 (quoting
Strickland, 466 U.S. at 689). Defense counsel's decision to tell the jury that her
client was convicted of first-degree kidnapping, when the actual crime need not
have been disclosed, was the result of deficient performance, not sound trial
strategy, as the State contends in its supplemental brief.
Additionally, to succeed on an IAC claim, a defendant must prove he
suffered prejudice. Strickland, 466 U.S. at 687. A defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015)
(quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52). In general, "only an
extraordinary deprivation of the assistance of counsel triggers a presumption of
prejudice." State v. Miller, 216 N.J. 40, 70 (2013) (citing Bell v. Cone, 535 U.S
685, 695–96 (2002)).
A-1513-19
21
In Veney, among other things, the defendant was charged with the
possessory weapon offense under N.J.S.A. 2C:39-5(b), and the certain persons
offense under N.J.S.A. 2C:39-7(b). 409 N.J. Super. at 373. Like here, the
prosecutor dismissed all counts of the indictment against the defendant,
including count one that charged him with unlawful possession, and tried the
case solely on the certain persons offense. Id. at 374. The jury convicted the
defendant, but the judge subsequently granted his motion notwithstanding the
verdict, finding the defendant's prior conviction was not for one of the statutory
predicate crimes. Id. at 375. The defendant then pled guilty to the unlawful
possession of a handgun, count one of the indictment. Id. at 376–77.
On direct appeal, the defendant raised an IAC claim. Id. at 377. We
rejected the defendant's contention that counsel provided ineffective assistance
because prosecution of count one was barred by principles of double jeopardy.
Id. at 382. However, we concluded the defendant's subsequent prosecution
under count one violated the Code's "mandatory joinder provision," N.J.S.A.
2C:1-8(b), and Rule 3:15-1(b), and was fundamentally unfair. Id. at 384–85.
We also determined that the existing record was sufficient to conclude the
defendant satisfied the two prongs of Strickland. Id. at 387. We held that
defense counsel's failure to move for formal dismissal of count one prior to the
A-1513-19
22
defendant's guilty plea "cannot be deemed trial strategy," and that failure
"denied [the] defendant the effective assistance of trial counsel." Id. at 388.
In State v. Allah, the Court considered the defendant's IAC claim on the
existing record and concluded that trial counsel's failure to file a meritorious
motion to dismiss a second prosecution on double jeopardy grounds
demonstrated deficient performance, finding "[n]o assertion of strategy
complicates this analysis." 170 N.J. 269, 285 (2002). The Court also found the
defendant had been prejudiced, noting "[a]t the very least, had counsel filed the
motion, defendant's claim of double jeopardy would have been preserved.
Counsel's inaction plainly prejudiced defendant." Id. at 286.
Unlike Veney and Allah, where the defendants were forced to undergo a
second trial or enter a guilty plea because of counsel's deficient performance,
defendant here received competent representation in all aspects of the trial, but
for the admission of evidence that he had been convicted previously of
kidnapping in the first degree. Yet, it is indeed difficult to see how permitting
the jury to know the nature of defendant's prior conviction, when an avoidable
alternative was available, did not affect the outcome of the case. Fritz, 105 N.J.
at 58. As we said in State v. Hooper,
We acknowledge that situations such as the one we
confront in this case, where the record on the post-trial
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motion contains all the facts necessary to establish a
prima facie case of ineffective assistance of counsel,
are rare. But when circumstances permit, a defendant
is entitled to the court's prompt review of the claim.
[459 N.J. Super. 157, 180–81 (App. Div. 2019) (citing
Allah, 170 N.J. at 285).]
Nonetheless, because we think it fair defendant and the State have an
opportunity to address the IAC claim as now framed in this opinion, we remand
the matter to the trial judge to immediately conduct a hearing regarding trial
counsel's decisions: 1) to enter into a stipulation that provided the jury with
evidence of defendant's prior conviction for first-degree kidnapping; and 2) to
consent to admission of a minimally redacted judgement of conviction that
included the specific crime.
Although the court may inquire as to counsel's reasons for making these
decisions, we have already concluded on this record that those decisions
demonstrate deficient performance as a matter of law. The judge shall only
consider whether defendant has met the second prong of the Strickland/Fritz
standard. We leave the conduct of the hearing, including additional testimony
if necessary, to the judge's sound discretion. If considering the strengths and
weaknesses of the State's case the judge concludes by a "reasonable probability"
that counsel's deficient performance affected the outcome of the trial, Fritz, 105
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N.J. at 58, she shall vacate defendant's conviction. Otherwise, we affirm
defendant's conviction and sentence.
Affirmed in part; remanded in part. We do not retain jurisdiction.
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