SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3360- 20 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. JOY J. JEFFERSON, a/k/a JOY J. JEFFESON, Defendant-Appellant.

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Submitted February 13, 2023

– Decided July 5, 2024 Before Judges Gooden Brown and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13

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- 1054. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on th e brief). Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3360

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The opinion of the court was delivered by DeALMEIDA, J.A.D. Defendant Joy J. Jefferson appeals from the March 15, 2021 order of the Law Division denying her petition for post-convicti on relief (PCR) after an evidentiary hearing. We affirm.
I. Defendant's convictions ar ose from events involving several young women and their relatives on April 9, 2013. At the time , Samantha Smikle's daughter T.S. was fourteen and her daughter T.M. wa s eleven. 1 Jievonnie Couch's daughter, N.G., was approximately the same age as T.S. N.G. and T.S. are friends. Smikle drove to T.S.'s school to pick up her daught er. T. M. was in the car with her mother. Soon after she arrived, Smikle saw T.S. and N.G. wa lking with a group of girls who looked like they "wanted to fi ght" behind them. When T.S. and N.G. turned around, a fight ensued. One of the girls fighting T.S. and N.S.
was T.P. T.P. is the niece of defendant and Velicia Odum , who are sisters. Both Smikle and T.M. exited Smikle's car. Ultimately, Smikle was able to get both of her daughters and N.G. away from the fight and into her car. She

1 We use initials to protect the identity of the mino rs mentioned herein.3 A- 3360

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drove the children home, where Couch was waiting fo r her daughter. Smikle told Couch about the fight and the two decided to talk to the parents of the other girls involved in the altercation. Although Smikle did not know the parents' addresses, T.S. told her they lived in the Roosevel t Village apartment complex in Carteret. Smikle took Couch, N.G. , Smikle's daughters, and Smikle's adult son TyQuan Robinson, to Roosevelt Village. When they arrive d, Couch recognized a woman whom she had met at the girls' school earli er that day. The woman, who was later identified as Odum, was on a cellphon e yelling. Based on what Smikle heard Odum saying, she believed Odum was the parent of one of the girls involved in the fight. Smikle walked up to Odum and said "they didn't jump your da ughter. I'm one of the parents and I just wanted to talk to you . All of this has to stop." Although Smikle's demeanor was calm, Odum's was not. She continued to yell, curse and scream. After about five minutes of unpr oductive conversation with Smikle, Odum left the area and entered her apartmen t. The apartment was close enough that Smikle could he ar what sounded like a drawer opening and "a whole bunch of dishes" eman ating from the apartment. She told her children to leave. As they were runni ng to Smikle's car, Odum4 A- 3360

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exited the apartment and punched Smikle in the face

. The women were separated by Robinson and Odum's husband. As Smikle was walking toward her car, she saw Robin son and Odum's husband fighting. Smikle grabbed her son and attempted to get him to return to the car with her. At that point, Odum grabbed Smikle by the hair and began hitting her. As Odum was hitting her, Smikle heard a voice and saw a woman she later identified as defendant wearing a pink shirt and a grey hat. The woman said to Smikle, "yeah, jump my niece." After hearing that remark, Smikle st arted feeling weak , turn ed around to face the woman in pink and grey and fell to her knees. Smikle felt herself being hit by Odum and defendant while she was on her knees. Couch grabbed Smikle and helped her to stand up and walk toward the car. When Couch intervened, the two women stopped hitting Smikle and started walking toward Odum's apartment. Smikle felt her l eft arm an d noticed she was bleeding. She had an open wound on her wrist and arm from being slashed with a razor or other sharp object. Smikle's injuries required sixty-nine stitches to close. Smikle was left with scars, numbness, linge ring pain, and involuntary twitching. She testified that she has little strength in her h and and that she experiences pain when she grabs objects.5 A- 3360

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When police arrived on scene, Smikle told them that a woman standing on the porch in a pink shirt and grey hat had cut her. It is undisputed that defendant was wearing a pink shirt and grey hat during the al tercation. During the investigation, defendant gave a recorded statement to polic e during which she denied knowing that Smikle had bee n stabbed and stated that she did not injure Smikle in any way. She stated t hat she had tried to break up the fight between Odum and Smikle. However, defend ant stated that she knew nothing about a knife, gun, or razor being used in the fight before the police mentioned that Smikle was slashed with a razor. Wh ile Odum admitted fighting with Smikle during a police interview immediately a fter the incident, she also denied responsibility for the stabbing. A grand jury indicted defendant, charging her with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-d egree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and f ourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). At trial, the State presented several witnesses who saw defendant directly confront Smikle and make slashing motions during the fight. T.M. testified that she saw defendant stab her mother. T.S. testified that she observed defendant armed with an eyebrow razor when she punched her mo ther. Smikle and a6 A- 3360

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witness heard defendant say "this is for my niece" or "this is for my nieces" before Smikle was slashed. Also, a videotape of th e altercation depicted defendant near Smikle during the altercation. Smik le's blood was found on a sweater defendant was seen holding in her hand. Smikle identified defendant as her assailant at trial, although she had not done s o in her statement to police. Couch testified that she observed a small, lime-gre en object in Odum's back pocket during the fight. The defense strategy was that the State could not m eet its burden due to a lack of evidence tying defendant to the stabbing. Trial counsel did not pursue a third-party guilt defense. Although Odum was on th e defense witness list, she was not called to testify at trial. Defendant did not testify at trial. The jury convicted defendant on all counts of the i ndictment. It found that defendant slashed Smikle on the arm and wrist with a small razor or other sharp object during the fight. About two months after the verdict, Odum sent a letter to the prosecutor and a letter to the trial judge, dated four days ap art. In the first letter, Odum said she wanted to "tell [her] story and my sister is innocent." In the second, she repeated, "[m]y sister is innocent." Odum adde d, "I am the one who cut [the victim] with a razor after she attacked me with a g roup of others." She7 A- 3360

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volunteered to take a polygraph. The trial court adjourned defendant's sentencing date to allow the defense to investigate Odum's claims. The trial court subsequently sentenced defendant to an aggregate sevenyear term of imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-
7.2. Seven months later, defendant moved for a new trial based on what she described as newly discovered evidence

– her sister's purported confession. The trial court, applying the holding in State v. Carte r, 85 N.J. 300 (1981), denied the motion. The court found that the evidence was not newly discovered because Odum's purported admission was available before tri al and defendant failed to call Odum as a witness. In addition, the court found that Odum's statement was
not likely to change the outcome of the trial because h er claims were not plausible in light of the evidence against defendan t. The court also observed that if Odum had testified at trial she would have been confronted by the State with her prior denial to police immediately after t he stabbing. We affirmed defendant's conviction and sentence. State v. Jefferson , No.
A- 2655 -15 (App. Div. Aug. 14, 2018). We also affirmed th e trial court's denial of defendant's motion for a new trial. While agree ing with the trial court's rationale for denying the motion, we added that Odu m's statements were8 A- 3360

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"inherently self-serving and presumptively unreliab le" because she claimed to have stabbed Smikle in self-defense, thereby shifti ng the blame to others. (slip op. at 7). The Supreme Court denied defendant's pe tition for certification. State v. Jefferson, 237 N.J. 189 (2019). Defendant thereafter filed a petition seeking PCR. She alleged that her trial counsel was ineffective for failing to call O dum as a witness and failing to argue a third-party guilt defense. The PCR court held an evidentiary hearing on defend ant's petition. The judge who presided at defendant's trial also presid ed at the hearing. The two attorneys who represented defendant at trial, Odum, and defendant testified. On March 15, 2021, the PCR court issued a written o pinion denying the petition. After a detailed review of the witnesses' testimony , the PCR court noted that it "questioned" some of the rationale pr offered by defendant's trial counsel for not calling Odum as a witness, i.e., th at she could not do so until Odum retained counsel , and that Odum's statement was not actually a confession. In addition, the court questioned why defenda nt's trial counsel took no steps to corroborate or investigate Odum's state men t.9 A- 3360

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"On the other hand," the PCR court continued, "ther e were significant reasons for [trial counsel] to believe she should n ot call Odum in this case." The court explained,

Odum's credibility was in question given her close relationship with [defendant], and especially follo wing her statement to police in which she denied cutting Smikle. The State could have, and would have, impeached Odum regarding her prior inconsistent statement to police. And the defense already had o ther viable trial theories: defense of others, that Smi kle's arrival "looking for a fight" constituted adequate provocation, and that there were so many people in the melee that reasonable doubt existed as to [defendan t's] guilt. If Odum's prospective testimony was not particularly credible, then even if it would not contradict the defense's trial theories it risked distracting from those theories and confusing the j ury. Additionally, if Odum appeared incredible, then as [defendant's] sister Odum's lack of credibility ris ked bleeding into [defendant's] own reputation, and/or raising the possibility that the two fabricated Odu m's story together, thereby unfavorably influencing the jury against [defendant]. In addition, the PCR court concluded that "even if [defendant's trial counsel] had taken more seriously Odum's stated wil lingness to exculpate [defendant], ultimately it is not clear what Odum's trial testimony would have been." The court noted that "[t]hough Odum testified unequ ivocally at the evidentiary hearing that she would have exculpated [defendant] at trial by inculpating herself, Odum failed to exculpate [defen dant] or inculpate herself in10 A- 3360

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her initial police statement." Thus, Odum "proved herself willing to give inconsistent statements regarding the case, solidif ying the possibility that she would testify at trial inconsistent with her promis e to exculpate [defendant]." The PCR court concluded that "despite the general p rinciple that a reasonable defense attorney should call exculpatory witnesses she is aware of and investigate possibly exculpatory witnesses, her e there were notable reasons for [defendant's trial counsel] to believe she shou ld not call Odum to testify at trial." The PCR court also concluded that defendant did not establish that the outcome of her trial would have been different had her counsel called Odum as a witness. "First," the PCR court noted, "it is un clear what impact Odum's testimony could have made because it is unclear wha t Odum's testimony would have been . . . ." Second, the court found that "e ven assuming Odum would have tried to exculpate [defendant] at trial by inculpat ing herself, Odum's promised testimony was couched in self-defense." The court noted that in our decision in defendant's direct appeal, we concluded that Odum's statements regarding the stabbing were "inherently self-serving and presumpt ively unreliable" because she claimed to have stabbed Smikle in self-defense, thereby shifting the blame to others. State v. Jefferson, (slip op. at 7). As the PCR court noted, we also11 A- 3360

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concluded that Odum's potential statement of guilt was "not of the sort that would probably change the jury's verdict if a new t rial were granted." Id. at 8. Third, the PCR court found that, "even in [defendan t's] best-case scenario[,] the State would have impeached Odum wit h Odum's prior denial of guilt to police, thereby weakening Odum's testimony." "Finally, and perhaps most fatal to [defendant's] PCR" petition, the cour t found, "evidence that was adduced at trial convincingly identified [defendant ] as the assailant." Thus, the court concluded, defendant was not entitled to PCR. A March 15, 2021 order memorializes the trial court's decision. This appeal followed. Defendant raises the followi ng argument. MS. JEFFERSON IS ENTITLED TO RELIEF ON HER CLAIM THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO PRESENT EVIDENCE OF THIRD-PARTY GUILT, INCLUDING PRESENTING VELICIA ODUM

– WHO REPEATEDLY CONFESSED TO THE STABBING, SAID SHE WOULD TESTIFY AS SUCH, AND WAS PRESENT DURING TRIAL WAITING TO TESTIFY

– AS A WITNESS.
II. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 4 59 (1992). Under Rule 3:22

- 2(a), a defendant is entitled to post-conviction re lief if there was a "'substantial12 A- 3360

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denial in the conviction proceedings' of a defendant's state or federal constitutional rights." Ibid. "A petitioner must establish the right to such reli ef by a preponderance of the credible evidence." Ibid . (citing State v. Mitchell , 126 N.J. 565, 579 (1992)). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest i ts decision" must be articulated. Mitchell, 126 N.J. at 579. The Sixth Amendment to the United States Constituti on and Article I, Paragraph 10 of the New Jersey Constitution guarant ee criminal defendants the right to the effective assistance of counsel. Stat e v. O'Neil, 219 N.J. 598, 610 (2014) (citing Strickland v. Washington, 466 U.S. 6 68, 686 (1984); State v. Fritz, 105 N.J. 42, 58 (1987)). To succeed on a cl aim of ineffective assistance of counsel, the defendant must meet the two-part te st established by Strickland , and adopted by our Supreme Court in Fritz. 466 U.S . at 687; 105 N.J. at 58. Under Strickland, a defendant first must show that his or her attorney made errors "so serious that counsel was not functi oning as the 'counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's performance is deficient if it "[falls] below an ob jective standard of reasonableness." Id. at 688.13 A- 3360

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A defendant also must show that counsel's "deficien t performance prejudiced the defense[,]" i d. at 687, because "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[,]" i d. at 694. "A reasonable probability is a probabilit y sufficient to undermine confidence in the outcome" of the trial. Ibid. "[A] court need not determine whether counsel's performance wa s deficient before examining the prejudice suffered by the defendant a s a result of the alleged deficiencies." Id. at 697 ; State v. Marshall, 148 N.J. 89, 261 (1997). "If it is easier to dispose of an ineffectiveness claim on th e ground of lack of sufficient prejudice, which we expect will often be so, that c ourse should be followed." Strickland, 466 U.S. at 697.
"W e defer to trial court's factual findings made afte r an evidentiary hearing on a petition for PCR." State v. Blake, 44 4 N.J. Super. 285, 294 (App. Div. 2016). "However, we do not defer to legal con clusions, which we review de novo." State v. Holland, 449 N.J. Super. 427, 4 34 (App. Div. 2017). Having carefully reviewed defendant's arguments in light of the record and applicable legal principles we affirm the March 15, 2021 order for the reasons stated in the PCR court's thorough and well -reasoned written decision. We add only the following.14 A- 3360

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Defendant's request for PCR is predicated on her cou nsel's decision not to call Odum as a witness. Our Supreme Court has observed that "[d]etermining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront." State v. A rthur, 184 N.J. 307, 320 (2005). "[A] defense attorney's decision concerning which w itnesses to call to the stand is 'an art,' and a court's review of such a decision s hould be 'highly deferential.'" Id. at 321 (quoting Strickland, 466 U.S. at 689, 69 3). As explained in detail in the PCR court's opinion, there are several reasons why competent counsel might not have called Odum as a witness at defendant's trial. First, although Odum stated in writing and told def ense counsel that she stabbed Smikle, she did not confess to the stabbing in a sworn statement prior to the trial. While a sworn statement is not a legal requirement to call Odum as a witness, the absence of such a statement raises t he reasonable concern that, if called, Odum would not inculpate herself or exonera te defendant, particularly where, as is the case here, a jury might view the e vidence as establishing that Odum and defendant acted in concert to harm the vic tim. Thus, defendant's counsel was justifiably concerned that Odum's testi mony could undermine the defense's strategic decision to argue to the jury t hat reasonable doubt as to defendant's guilt remained at the close of the Stat e's proofs.15 A- 3360

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Odum's half-hearted effort to take responsibility f or stabbing Smikle corroborated defense counsel's concerns. While Odu m claims to have gone to the prosecutor's office once to confess, only to be turned away by a receptionist, Odum took no concrete steps to subject herself to c riminal prosecution for the crime and to exonerate defendant prior to the trial

. In the absence of certainty that Odum would admit to stabbing Smikle and provid e exculpatory evidence of defendant's guilt, defense counsel's strategic deci sion was reasonable. We also agree with the PCR court's conclusion that defendant did not establish that had Odum been called as a witness, t he outcome of the trial would have been different. As the PCR court noted, the S tate surely would have crossexamined Odum regarding her statement to police imm ediately after the incident , her failure to confess to the crime in a sworn statement to po lice or the prosecutor's office prior to trial, and her familia l relationship to defendant. In addition, the State adduced significant evidence, i ncluding eyewitness testimony, that defendant stabbed Smikle. In light of this evidence, a belated attempt by defendant's sister to take the blame for stabbing Smikle would not likely have resulted in defendant's acquittal. Affirmed.