SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3583-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAUN STUKES,

Defendant-Appellant.

__________________________

Submitted April 25, 2017 – Decided

Before Judges Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, 

Law Division, Atlantic County, Indictment No. 

05-10-2240.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Michael C. Kazer, Designated 

Counsel, on the brief).

Diane M. Ruberton, Acting Atlantic County 

Prosecutor, attorney for respondent (Derrick 

Diaz, Special Deputy Attorney General/Acting

Assistant Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

May 3, 2017
2 A-3583-14T2

Defendant Shaun Stukes appeals from a November 6, 2014 order 

denying his petition for post-conviction relief (PCR) after a 

three-day plenary hearing, pursuant to our February 5, 2013 remand. 

At the hearing, not only did defendant and his trial counsel 

testify, but also a sheriff's officer who had been a member of the 

jury. Defendant's claim before us is that his lawyer should have 

struck this member of the jury pursuant to defendant's request. 

We affirm.

After a two-day jury trial, defendant was convicted of seconddegree certain persons not to have a handgun, N.J.S.A. 2C:39-

7(b)(1). He was sentenced to an extended term of fourteen years

in prison with seven years of parole ineligibility. 

At the PCR plenary hearing, defendant testified that he 

recognized the sheriff's officer as one who "took [him] back and 

forth to court" for proceedings on an unrelated offense. According 

to defendant, the officer transported him approximately thirty 

times over a period of eight years and "took [his] handcuffs and 

shackles off plenty of times." 

Defendant testified that he told his trial attorney, who

asked him if he wanted to keep the officer on the jury and defendant 

responded, "you['re] my lawyer." Defendant also testified, in a 

somewhat contradictory fashion, that he told counsel that he did 
3 A-3583-14T2

not want the officer on the jury and that she told him she could 

not do anything because she had run out of jury challenges.

Trial counsel1 testified that as part of her normal practice, 

she gave her clients a pen and paper before jury selection began 

so they could write any objections they had to potential jurors. 

During jury selection, initially defendant wrote a note objecting 

to the officer appearing on the jury for the sole reason that the 

officer was in law enforcement. She told defendant that the 

officer should be left on the jury because he was an intelligent 

African-American man, who appeared to have the ability to be 

impartial. She further testified that she told defendant that 

"it's very difficult to get African-Americans as part of the jury 

pool." Counsel testified that after a few minutes, "[defendant] 

agreed to accept [the officer]." 

She testified that defendant never told her that he knew the 

officer as the person who transported him back and forth to court. 

She also testified that after their discussion, defendant did not 

tell her he wanted the officer excused from the jury. It was her 

normal practice to strike a potential juror if her client wanted

the juror stricken, even if she did not agree with the decision. 

 

1 Trial counsel testified that she had been disbarred in 2010 based 

on a criminal conviction. 
4 A-3583-14T2

She would not have chosen the officer if defendant had told her

that he wanted the officer stricken. 

The officer testified that he was employed as a sheriff's 

officer at the courthouse at the time of jury selection. He drove 

a bus that transported inmates from the county jail to the 

courthouse. When chosen as a juror, he "[v]ery, very vaguely[]" 

remembered transporting defendant. He also testified that his 

recollection of defendant did not shape or guide his verdict and 

that he did not tell his fellow jurors that he was familiar with 

defendant. 

The PCR court noted that when the defense said it was 

satisfied with the jury, three defense challenges remained. The 

court further found trial counsel to be credible and defendant's 

testimony to be contradictory and incredible.

Defendant raises the following single issue on appeal:

POINT I: THE ORDER DENYING POST-CONVICTION 

RELIEF SHOULD BE REVERSED BECAUSE TRIAL 

COUNSEL'S TESTIMONY THAT SHE FAILED TO 

CHALLENGE JUROR [], A SHERIFF'S OFFICER WHO 

ADMITTED HAVING A "VAGUE RECOLLECTION" OF 

TRANSPORTING DEFENDANT FROM THE ATLANTIC 

COUNTY JAIL TO COURT AND BACK, BECAUSE HE WAS 

AN AFRICAN-AMERICAN, IN CONJUNCTION WITH POSTCONVICTION RELIEF CRITERIA REQUIRING THAT 

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BE 

VIEWED IN A LIGHT FAVORING DEFENDANT, 

SATISFIED DEFENDANT'S "PREPONDERANCE OF THE 

EVIDENCE" BURDEN OF PROOF.
5 A-3583-14T2

Defendant's petition for PCR arises from Rule 3:22-2(a),

which permits challenge of a conviction based on ineffective 

assistance of counsel. To establish ineffective assistance of 

counsel, a defendant must prove that: (1) "counsel made errors so 

serious that counsel was not functioning as the 'counsel' 

guaranteed the defendant by the Sixth Amendment," and (2) "the 

deficient performance prejudiced the defense." Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987) 

(adopting the Strickland two-part test in New Jersey). "[T]o 

establish prejudice, a defendant must show not only that the 

outcome of his trial would have been different absent the alleged 

deficient representation, but also that the deficient 

representation rendered the result of his proceeding fundamentally 

unfair or unreliable." State v. Holmes, 290 N.J. Super. 302, 311 

(App. Div. 1996). 

It is well-established that "counsel is strongly presumed to 

have rendered adequate assistance and made all significant 

decisions in the exercise of reasonable professional judgment." 

Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed.

2d at 695. "[A]n otherwise valid conviction will not be overturned 

merely because the defendant is dissatisfied with his or her 

counsel's exercise of judgment during the trial." State v. 
6 A-3583-14T2

Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 

N.J. 293, 314 (2006)). 

We defer "to a PCR court's factual findings based on its 

review of live witness testimony." State v. Nash, 212 N.J. 518, 

540 (2013). We do not second-guess the fact-finder's credibility 

findings except in extraordinary circumstances. "An appellate

court's reading of a cold record is a pale substitute for a trial 

judge's assessment of the credibility of a witness he has observed 

firsthand." Ibid. We uphold the PCR court's factual findings as 

long as the findings "are supported by sufficient credible evidence 

in the record." Ibid. 

Defense counsel testified that defendant only objected to the 

officer because he was a law enforcement officer. Counsel told 

defendant that although the officer was in law enforcement, it was 

nonetheless beneficial to have him on the jury because he was 

African-American, intelligent and appeared to be impartial. 

Defendant then agreed to have the officer on the jury. Because 

counsel believed it was difficult to impanel African-American 

jurors in Atlantic County, it was counsel's strategy for the 

officer to remain on the jury. "Merely because a trial strategy 

fails does not mean that counsel was ineffective." State v. Bey, 

161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct.

2693, 147 L. Ed. 2d 964 (2000). Defendant never told her that he 
7 A-3583-14T2

was familiar with the officer or that he definitely wanted the 

officer stricken. Based on our acceptance of the PCR court's 

credibility findings, sufficient credible evidence was presented

to support the court's conclusion that trial counsel's 

representation was not deficient. 

Affirmed.