SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 16T4 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. JAMES D. JOHNSON, Defendant

- Appellant.

_______________________ __________

Submitted September 13, 2018

– Decided Before Judges Fisher and Suter. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10

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- 0660. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Theodore Stephens, II , Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

September 20, 20182 A

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In Irvington, l ate in a June evening in 2009, defendant fatally shot thirteen

- year - old Justin Grisham i n t he back of the neck beca use he mistakenly believed Justin was Farad Williams, with who m he had fought earlier in the day. After a failed motion to suppress statements he made to police, the jury convicted defendant of first

- degree murder, N.J.S.A. 2C:11

- 3(a), a nd other offenses, based on evidence adduced over the course of a seven

- day trial. The judge imposed a thirty

- year prison term, with a thirty

- year period of parole ineligibility, on the first

- degree murder con viction and a consecutive three

- year
te rm on defendant's third

- degree terroristic

- threat c onviction , N.J.S.A. 2C:12

- 3(a).
D efendant appealed, arguing the j udge erred in charging the jury and in admitting certain hearsay state ments and other bad

- act evidence; he also asserted that the prosecuto r misrepresented the facts in his summation and mischaracterized defendant's recorded statemen t a s a confession. We rejected these arguments and affirmed. State v. Johnson , No. A

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- 12 ( App. Div. Apr. 17, 2015), and t he Supreme Court denied defenda nt's petition for certification, 222 N.J. 311 (2015). Within a few months of the direct appeal's disposition, defendant filed in the trial court a post

- conviction relief (PCR) petition, arguing he was denied the3 A

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effectiv e assistance of counsel. He claim ed that "despite [his] deep desire to testify at trial and profess his innocence," trial counsel "told [ him ] not to" because, in referring to the state ment defendant gave to police, he had "said too much already." He also argued trial couns el was ineffective in h er cross exami nation of some witnesses and her failure to call another. The PCR judge denied relief for the reasons expressed in a written opinion. Defendant appeals, arguing the judge "erred in denying [his PCR petition] without affording him an evident iary hearing to fully address his contention that he failed to receive adequate legal representation at the trial level" in the following three ways:

I

. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HER FAILURE TO THOROUGHLY DISCU SS WITH HER CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TE STIFY, AS A RESULT OF WHICH H E DID NOT TESTIFY IN HIS OWN DEFENSE.
II

. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CALL JESSE SANDERS AS A DEFENSE WITNESS AT TRIAL.
III

. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTAION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO ADEQUATELY CROSS

-4 A

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- 16T4 EXAMINE TWO CRITICAL STATE'S WITNESSES BASED UPON INFORMATION COUNSEL LEARNED AT A MATERIAL WITNESS HEARING.
We find insufficient merit in defendant's arguments to warrant further discussion in a writ ten opinion, R. 2:11

- 3(e)(2), and affirm substantially for the reasons set forth by Judge John I. Gizzo in his written opinion

. In a nutshell, the judge recognized that the trial attorney's assistance was not ineffective because her advice was either adequ ate or based on a reasonable tactical decision within the meaning of the Strickland / Fritz test. 1 The judge determined that the advice that defendant not testify was sound in light of the

cross - examination he would have faced because of the damaging statements he made to police. 2 He also concluded that the decisi on not to call Sanders was reasonable because Sanders' sta tements to police revealed he could provide few

1 Str ickland v. Washington , 466 U.S. 668 (1984); State v. Fritz , 105 N.J. 42 (1987).

2 In his statement to police, defendant appeared to exclaim, in reference to the victim, "That's the guy that I killed?" The prosecutor argued this in his summation and in ruling on the direct appeal

– and the propriety of the prosecutor's summation

– we not ed that we had "also examined the recording and confirmed that t he prosecution 's version was not just reasonable but likely more accurate than what defendant argues." Johnson , slip op. at 13 n.5 (the defense had argued that defendant said "That's the guy t hat got killed") . This would have presented fertile ground for the prosecution's cross

- examination of defendant and strongly suggested the soundness of the trial attorney's advice that defendant not testify.5 A

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specifics as to when and where he was with defendant on the evening of the shooting in the face of other more specific evidence , including video evidence, that placed defendant at or in the immediate vicinity of the crime . And we see no merit in defendant's last point , in which he argues that trial counsel ineffectively cross

- examined Farad Williams and Sharkeez Williams . Neither was an eyewitness to the murder; they instead testified abou t the earlier fight

– the likely motivation for the killing

– as well as the circumstances surrounding the terroristic

- threat charge. D efendant argues only that trial counsel should have explored with them their retic ence about cooperating or testify ing

. In reviewing the trial transcript, we agree that those witnesses were thoroughly

cross - examined and that it isn't likely that further inquiry into their app arent unwillingness to cooperate would have benefit ted the defense

. Affirmed.