A.D. VS. EXCELLENT TRANSPORT CO-OP, LLC (L-2625-13, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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 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-4161-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES WOODS, a/k/a AARON DAVIS
and JAMES GREEN,

Defendant-Appellant.
_____________________________

Submitted April 24, 2017 – Decided May 3, 2017

Before Judges Sabatino and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
08-12-3640.

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

Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Nancy P. Scharff,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant James Woods, who was convicted of robbery and other

offenses after a 2010 jury trial, appeals the trial court's denial
of his post-conviction relief (PCR) petition without an

evidentiary hearing. We affirm.

In a seven-count indictment, defendant and co-defendant Perry

Alston were jointly charged with first-degree armed robbery,

N.J.S.A. 2C:15-1(a)(1) (count one); third-degree possession of a

knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two);

fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d)

(count three); second-degree conspiracy to commit armed robbery,

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1) (count four); and

fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)

(count six). Alston was separately charged with third-degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-

10(a)(1) (count five); and third-degree possession of a controlled

dangerous substance, N.J.S.A. 2C:35-10.5 (count seven). The jury

convicted defendant of all the charges against him. After the

jury rendered its verdict, defendant moved for a new trial pursuant

to Rule 3:20-1. The trial court denied the motion.

At sentencing, the trial court denied the State's motion to

sentence defendant to an extended term as a persistent offender.

After merging counts two, three, and four into count one, the

court sentenced defendant to a seventeen-year prison term, with

an eighty-five percent period of parole ineligibility under the

2 A-4161-14T2
No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed a

concurrent one-year term on count six.

In this court's unpublished opinion on direct appeal, we

recounted the underlying facts.

Both co-defendants were tried together. Sergeant
Rafael Martinez of the Camden City Police Department
testified that on August 27, 2008, he was assigned to
patrol the Broadway Avenue area of Camden. Martinez
testified that the area was designated a "high-crime"
area where "a lot of drug sales" took place.

At around 2:00 p.m., Martinez was on routine patrol
in a police vehicle on William Street behind a methadone
clinic, when he "observed two black males and a white
male standing in the parking lot" of the clinic. The
white male was later identified as the victim, Steven
Phillips. According to Martinez, the two black males,
later identified as co-defendants, fled the scene when
they observed his vehicle:

As soon as the two black males observed my
presence, they were looking right at me, they
immediately took off running. Of course, I
said something's going on. I immediately drove
up to the victim with my window rolled down
from the passenger side. He told me, "They
just robbed me."

Martinez chased the two individuals on foot and observed
them enter an alleyway. Martinez testified there was no
exit from the alleyway, "so they had nowhere to go."

As Martinez entered the alleyway, he instructed the
two men "to stop and get down," but they did not comply.
He then observed Alston "drop an object onto the ground,"
and testified that defendant ran past him while he was
trying to detain Alston. According to Martinez, Alston
said, "I was selling him pills." Martinez arrested
Alston and found several different pills in a
prescription pill container in his pocket. Martinez also

3 A-4161-14T2
 recovered the object that Alston dropped--a folding
knife. Other officers apprehended defendant.

Phillips testified at trial he was at the clinic
for counseling and to receive methadone. According to
Phillips, he left the clinic between 12:00 and 12:30
p.m., and as he was leaving two men approached him and
began to harass him: "As I was approached, basically the
gentleman pulled a knife out on me. Another gentleman
went for my wallet. I tried to knock his hand down,
away, a couple of times. Then the one gentleman told the
other gentleman to stab me." Phillips identified Alston
as the man with the knife. Phillips said he "flung" his
wallet, containing "roughly" fifteen or sixteen dollars,
and his medication. Defendant took the money from the
wallet and both men ran when they saw Martinez arrive.

Phillips followed defendant after he ran past
Martinez and watched other officers detain him. Phillips
testified the police asked him how much money was stolen
from his wallet, and he told them, "I believe it was a
ten, a five, and a one, or a ten and six ones." According
to Phillips, the money in defendant's pocket "was balled
up and it was exactly what I said at the time." Phillips
identified the knife collected by Martinez as the knife
that was used in the robbery.

Neither defendant nor Alston testified or presented
any witnesses. In summation, defense counsel argued,
"This was all a ruse by Mr. Phillips to get out of the
fact that he's a drug user still using drugs caught in
the act of buying drugs."

[State v. Woods, No. A-1010-10 (App. Div. August 21,
2013)(slip op. at 4-6), certif. denied, 217 N.J. 293
(2014).]

In his present appeal, defendant raises through counsel the

following arguments for consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S
PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING

4 A-4161-14T2
 HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS
AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO REQUEST A MISTRIAL AND SEEK A
SEVERANCE WHEN IT BECAME APPARENT THE CO-DEFENDANT'S
DECISION TO PROCEED PRO SE WOULD ADVERSELY IMPACT THE
DEFENDANT'S ABILITY TO RECEIVE A FAIR TRIAL.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF
COUNSEL'S FAILURE TO ADEQUATELY AND EFFECTIVELY CROSS-
EXAMINE CERTAIN OF THE STATE'S WITNESSES TO ELICIT
BENEFICIAL TESTIMONY FOR THE DEFENSE.

The applicable legal principles that guide our review of this

PCR appeal involving claims of trial counsel's ineffectiveness are

well-established.

Under the Sixth Amendment of the United States Constitution,

a criminal defendant is guaranteed the effective assistance of

legal counsel in his defense. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To

establish a deprivation of that right, a convicted defendant must

satisfy the two-part test enunciated in Strickland by

demonstrating that: (1) counsel's performance was deficient, and

(2) the deficient performance actually prejudiced the accused's

defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693;

5 A-4161-14T2
accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland two-part test in New Jersey).

"Judicial scrutiny of counsel's performance must be highly

deferential." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at

694. In reviewing such claims, courts apply a strong presumption

that defense counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

"[C]omplaints 'merely of matters of trial strategy' will not serve

to ground a constitutional claim of inadequacy[.]" Fritz, supra,

105 N.J. at 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471,

489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed.

2d 366 (1965), rev'd on other grounds State v. Czachor, 82 N.J.

392 (1980)). Proceeding with a joint trial with Alston, rather

than seeking a severance, was a tactical, strategic decision. See

State v. Buonadonna, 122 N.J. 22, 43-44 (1991). Where, as here,

a convicted defendant claims that his trial attorney was deficient

in failing to move for severance, our courts review the attorney's

decision on such strategic matters through a "highly deferential"

prism. See, e.g., State v. Arthur, 184 N.J. 307, 320-21 (2005).

"To establish a prima facie claim of ineffective assistance

of counsel, a defendant must demonstrate the reasonable likelihood

of succeeding" under the Strickland-Fritz test. State v. Preciose,

6 A-4161-14T2
129 N.J. 451, 463 (1992). When defendants establish a prima facie

claim of ineffective assistance of counsel, they are ordinarily

entitled to an evidentiary hearing on their claims. Id. at 462;

R. 3:22-10(b).

Applying these standards, we affirm the PCR court's

conclusion that defendant did not establish a prima facie case of

ineffective assistance of counsel, and that his claims were without

merit.

In our opinion on direct appeal we addressed defendant's

argument that Alston's improper statement in his opening statement

deprived him of a fair trial.

In his third point, defendant argues Alston, who
represented himself at trial, "made improper opening
statement remarks which were highly prejudicial to
defendant and deprived him of a fair trial."
Specifically, defendant objects to Alston's statement
that he "and Mr. Woods [were] at the scene because they
were getting high."

Defense counsel objected to the remark and, at
sidebar, the trial judge instructed Alston not to
testify during the remainder of his opening statement.
Following Alston's opening statement, the trial judge
provided the jury with the following instruction:

Now that we've completed the opening
arguments and before we actually hear from the
witnesses, I do want to remind you of the point
that I made during the general instructions,
which is that the arguments of counsel and,
as well, Mr. Alston presenting his opening
arguments . . . are not evidence. . . . [T]he
evidence is limited strictly to what you will
hear from witnesses, documents that are

7 A-4161-14T2
 admitted as exhibits, and physical evidence
that may be admitted as exhibits.

Thus, the trial court correctly and promptly instructed
the jury to only consider the evidence presented during
the course of the trial, and that the opening statements
and summations were not evidence. Under these
circumstances, Alston's improper statement was harmless.
R. 2:10-2.

[Woods, supra, slip op. at 12-13.]

Defendant contends that his trial counsel was ineffective by

failing to move for a mistrial and severance after Alston's

allegedly prejudicial comment in openings. In addition, he

contends that his trial counsel should have cross-examined the

police officer and the robbery victim more fully on certain points

to impeach their testimony.

During Alston's opening statement, he stated that he "and Mr.

Woods [were] at the scene because they were getting high."

Defendant's attorney objected to the remark. Following the co-

defendant's opening statement, the trial judge gave an appropriate

curative instruction to the jury. Defendant raised this issue on

direct appeal. In our opinion on direct appeal, we held that the

trial judge correctly and promptly instructed the jury regarding

the statement, and that the co-defendant's improper statement was

harmless. Woods, supra, (slip op. at 13). Therefore, the failure

to move for a mistrial does not meet either prong of the

Strickland-Fritz test. In any event, the issue is procedurally

8 A-4161-14T2
barred as it was adjudicated on the merits in defendant's direct

appeal. R. 3:22-5.

We also find that the failure to move for severance was not

deficient. Defendant made a strategic decision to assert a defense

that there was no robbery and that the alleged victim, who was a

drug user there to buy drugs, claimed he was robbed to avoid being

arrested himself. In his opening statement and his closing

argument, trial counsel asserted that the victim was there to buy

drugs, but the transaction was interrupted when Sergeant Martinez

happened upon the scene. Trial counsel further argued that the

victim was "astute" enough to run to the police and claim he had

been robbed as a ruse to avoid the fact that he is a drug user who

was caught in the act of buying drugs. The co-defendant had the

same trial strategy.

In considering a motion for severance, trial courts should

"balance the potential prejudice to defendant's due process rights

against the State's interest in judicial economy." State v.

Coleman, 46 N.J. 16, 24 (1965), cert. denied, 383 U.S. 950, 86 S.

Ct. 1210, 16 L. Ed. 2d 212 (1966). "A joint trial is preferable

because it fosters the goal of judicial economy and prevents

inconsistent verdicts." State v. Weaver, 219 N.J. 131, 157 (2014).

Joint trials also serve the interests of justice by enabling "more

accurate assessment of relative culpability," an advantage which

9 A-4161-14T2
"sometimes operates to the defendant's benefit." State v. Brown,

118 N.J. 595, 605 (1990) (quoting Richardson v. Marsh, 481 U.S.

200, 210, 107 S. Ct. 1702, 1708, 95 L. Ed. 2d 176, 187 (1987)).

The test for granting severance is a rigorous one. Id. at

605-06. "The mere existence of hostility, conflict, or antagonism

between defendants is not enough." Id. at 606. A mere risk of

prejudice is not sufficient to warrant severance; the defendant

must show actual prejudice. State v. Moore, 113 N.J. 239, 274

(1988). The defendant bears the burden of demonstrating prejudice.

State v. Lado, 275 N.J. Super. 140, 149 (App. Div.), certif.

denied, 138 N.J. 271 (1994).

"Separate trials are required only when defendants 'present

defenses that are antagonistic at their core.'" Brown, supra, 118

N.J. at 606 (quoting United States v. Berkowitz, 662 F.2d 1127,

1134 (5th Cir. 1981)). "When [a] defendant's defense strategy is

antagonistic at its core to the defense strategy of his co-

defendant so that the jury could only believe one of them,

severance is in order." Weaver, supra, 219 N.J. at 157.

Defendant has not shown that actual prejudice resulted from

conducting a joint trial. The two defendants' positions were not

"antagonistic and mutually exclusive or irreconcilable." Brown,

supra, 118 N.J. at 605. Both defendants challenged the victim's

credibility and denied that a robbery had even occurred. Moreover,

10 A-4161-14T2
because they did not testify or present any witnesses, the two

defendants did not present any conflicting evidence. Defendant

has not demonstrated a reasonable likelihood that a motion for

severance would have been granted, let alone that severance was

required.

Defendant also argues that his attorney was ineffective

because he did not vigorously cross-examine the victim or Sergeant

Martinez. The record reflects that trial counsel extensively

cross-examined the victim regarding the time of the victim's

earlier treatment and departure from the methadone clinic, and his

positive drug test earlier that day. The record further reflects

that trial counsel extensively cross-examined Sergeant Martinez

regarding deviations from his report. Trial counsel was successful

in obtaining Sergeant Martinez's admission that he did not see

anyone throw anything away while fleeing, and that he saw Alston

drop a folding knife in the alley. Trial counsel also elicited

testimony from Sergeant Martinez that the money recovered from

Alston was not in the same exact denominations allegedly taken

from the victim. Finally, trial counsel was able to obtain

Sergeant Martinez's concession that he did not see defendant after

passing him.

Finally, as our original opinion on direct appeal reflects,

the trial judge correctly instructed the jury on accomplice

11 A-4161-14T2
liability. Woods, supra, slip op. at 12. Defendant is

procedurally barred from re-raising that issue on PCR. R. 3:22-

5; State v. McQuaid, 147 N.J. 464, 484 (1997); Preciose, supra,

129 N.J. at 476.

The PCR judge correctly found that defendant did not establish

a prima facie case of ineffective assistance of counsel. Defendant

is unable to satisfy either prong of the Strickland-Fritz test.

Accordingly, the PCR court properly denied defendant's petition

without conducting an evidentiary hearing.

Affirmed.

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