SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3107-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES H. SCOTT,

Defendant-Appellant.

______________________________

Submitted October 24, 2018 – Decided May 10, 2019

Before Judges Koblitz and Ostrer.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 04-05-0414.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michael James Confusione, Designated 

Counsel; William P. Welaj, on the brief).

Michael A. Monahan, Acting Union County 

Prosecutor, attorney for respondent (James Colin

Brady, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant James H. Scott appeals from a January 3, 2017 order denying, 

without an evidentiary hearing, his petition for post-conviction relief (PCR). He 

collaterally challenges his convictions for multiple counts of first-degree 

robbery and related firearms offenses arising from four robberies involving 

multiple victims between April 24 and May 17, 2003.1 Defendant was also 

convicted of separate possessory firearms offenses committed the day he was 

arrested, May 20, 2003. He received an aggregate sentence of forty-three years, 

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, including consecutive 

terms of eighteen, fifteen, and ten years for robbery counts relating to three of 

the incidents.

Defendant contends he received ineffective assistance of counsel because 

his trial attorney did not file a pre-trial motion to sever the counts related to the 

five separate incidents; and his appellate attorney did not raise the issue on 

appeal. We disagree and affirm. We are not convinced that a severance motion 

would have succeeded, particularly given the prosecution, albeit unsuccessful, 

of a conspiracy count that encompassed all four robberies. Furthermore, 

 

1

 We affirmed these convictions on direct appeal. State v. Scott (Scott I), No. 

A-0853-06 (App. Div. Aug. 27, 2010).
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defendant has not demonstrated that, even if his attorneys were deficient, he 

suffered prejudice as a result.

I.

The PCR court's order follows a remand from the Supreme Court. State 

v. Scott (Scott III), 225 N.J. 337 (2016). The PCR court initially denied 

defendant's petition without oral argument. We affirmed that decision

substantially for the reasons the judge set forth in a written decision. State v. 

Scott (Scott II), No. A-3951-13 (App. Div. Jan. 19, 2016), slip op. at 4-5. We 

agreed that a severance motion would not have succeeded because, in a trial for 

any of the five incidents, evidence as to the others would have been admissible 

under N.J.R.E. 404(b) as proof of a charged conspiracy. Scott II, slip op. at 5. 

It did not matter, for purposes of our ineffective-assistance-of-counsel analysis, 

that the jury ultimately acquitted defendant of the conspiracy count. Ibid. We 

also held that the PCR correctly dispensed with oral argument. Ibid. On that 

point alone, the Supreme Court summarily reversed and remanded for oral 

argument, pursuant to State v. Parker, 212 N.J. 269 (2012). Scott III, 212 N.J. 

at 337.

At the subsequent oral argument, defendant reprised his previous written 

arguments. The PCR court was unpersuaded. Citing State v. Pitts, 116 N.J. 580, 
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601-02 (1992), the court observed that, although a party may seek relief from 

prejudicial joinder under Rule 3:15-2, no prejudice exists if, in a trial on a single 

charge, evidence of the other charges would be admissible under N.J.R.E. 404(b)

and the four-prong Cofield test. See State v. Cofield, 127 N.J. 328, 338 (1992) 

(holding evidence of other crimes and wrongs is admissible if "relevant to a 

material issue"; "similar in kind and reasonably close in time to the charged 

offense"; "clear and convincing"; and its apparent prejudice does not outweigh 

its probative value). The court concluded that a severance motion would have 

failed because evidence of the robberies would have met the Cofield test.

The court noted:

[T]he defendants committed a series of nighttime 

robberies over the course of a month in the nearby 

towns of Union and Linden using the same vehicle, the 

same weapon, the same clothing, and the same modus 

operandi. The defendant's theory of the case was that 

he didn't participate in any of the crimes charged.

Therefore, evidence of each of the charged crimes 

would have been admissible at separate trials for the 

purpose of showing a common scheme or plan and as 

evidence of identity and intent. . . . The crimes were 

similar in kind and reasonably close in time to each 

other, and the evidence was clear and convincing based 

on the video, the statements of the defendant, the gun, 

the gloves, the ski masks, the sweatshirt, the jacket, the 

seized proceeds of the robberies and the stolen car 

parked in front of the defendant's home. This evidence, 

taken together, was extremely probative of the common 

scheme knitting the charged robberies together and of 
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the identity of the perpetrators. . . . [T]he probative 

value of the evidence far outweighed its prejudice to the 

defendant . . . .

Furthermore, citing State v. Louf, 64 N.J. 172, 177 (1973), the court held

that evidence of the four incidents was admissible to prove the conspiracy 

charge, notwithstanding the jury's not-guilty verdict on that count. The PCR 

court stated, "[I]t is well-settled that, where the crime charged was allegedly 

committed in furtherance of a conspiracy, evidence of the acts of any conspirator 

in furtherance of a common plan, including other crimes, is admissible against 

all of the parties to the conspiracy."

On appeal, defendant presents the following point for our consideration:

POINT I

THE POST-CONVICTION RELIEF COURT ERRED 

IN DENYING THE DEFENDANT'S PETITION FOR 

POST-CONVICTION RELIEF WITHOUT 

AFFORDING HIM AN EVIDENTIARY HEARING 

TO FULLY ADDRESS HIS CONTENTION THAT HE 

FAILED TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION FROM TRIAL COUNSEL AS A 

RESULT OF TRIAL COUNSEL'S FAILURE TO FILE 

A MOTION FOR SEVERANCE INVOLVING THE 

VARIOUS CHARGES RELATING TO FOUR 

SEPARATE ROBBERIES AS WELL AS THE 

CHARGES RELATING TO VARIOUS WEAPONS 

OFFENSES.

A. FACTUAL BACKGROUND.
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B. THE PREVAILING LEGAL PRINCIPLES 

REGARDING CLAIMS OF INEFFECTIVE 

ASSISTANCE OF COUNSEL BASED UPON 

COUNSEL'S FAILURE TO MAKE AN 

APPROPRIATE MOTION, EVIDENTIARY 

HEARINGS, PETITIONS FOR POSTCONVICTION RELIEF AND MOTIONS FOR 

SEVERANCE MADE PURSUANT TO RULE

3:152(b).

C. THE DEFENDANT WAS ENTITLED TO AN 

EVIDENTIARY HEARING TO FULLY 

ADDRESS TRIAL COUNSEL'S FAILURE TO 

MAKE A MOTION FOR SEVERANCE PRIOR 

TO TRIAL WHICH EFFECTIVELY DENIED 

TO THE DEFENDANT HIS ABILITY TO 

RECEIVE A FAIR TRIAL.

II.

We review de novo the PCR court's factual findings without an evidentiary 

hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no deference 

to the trial court's conclusions of law. Ibid.

In reviewing the merits of defendant's petition, we apply the familiar twopronged Strickland standard to determine whether defendant has shown that (1) 

his counsel's performance was so deficient that it "fell below an objective 

standard of reasonableness," and (2) there was "a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding would have 

been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). "The 
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right to effective assistance" includes that of appellate counsel, and the same 

Strickland test applies. State v. O'Neil, 219 N.J. 598, 610-11 (2014). "A 

defendant shall be entitled to an evidentiary hearing" before a PCR court if he 

or she establishes: "a prima facie case in support of post-conviction relief";

"material issues of disputed fact that cannot be resolved by reference to the 

existing record"; and a "hearing is necessary to resolve the claims for relief." R.

3:22-10(b).

A.

It is not ineffective to refrain from filing a meritless motion or raising an 

unsuccessful argument. State v. O'Neal, 190 N.J. 601, 619 (2007); State v. 

Worlock, 117 N.J. 596, 625 (1990). We agree with the PCR court's assessment 

that a severance motion would likely have failed. The PCR court accurately 

described the applicable test for determining whether joinder is unduly 

prejudicial. Substantially for the reasons the PCR court expressed, had the 

robbery incidents been severed, evidence of the remaining incidents would have 

been admissible under N.J.R.E. 404(b) to demonstrate "a common scheme or 

plan [that] embodies the commission of two or more crimes so related that proof 

of one tends to establish the other." State v. Lumumba, 253 N.J. Super. 375, 

387 (App. Div. 1992); see also State v. Sterling, 215 N.J. 65, 92 (2013) ("Other-
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crimes evidence may also be admitted on the issue of identity when a particular 

weapon or disguise used in one crime connects a defendant to another offense."); 

State v. Long, 119 N.J. 439, 474 (1990) (applying the predecessor to N.J.R.E. 

404(b) and holding that "evidence of the other crimes would have been 

admissible [in a trial of severed counts] . . . to establish either identity or the 

weapon used"). Here, defendant and his cohort used the same masks, gloves

and weapons in multiple robberies, which identified them as the offenders.

Significantly, the indictment also charged that defendant conspired with 

his co-defendants to commit the robberies between April 24 and May 17, 2003. 

Where evidence that a defendant committed another crime "tends to establish 

the existence of a larger continuing plan of which the crime on trial is a part, it 

is admissible for such purpose." Louf, 64 N.J. at 178. Thus, the evidence of 

each incident was admissible to prove the alleged conspiracy, notwithstanding 

the jury's later acquittal of that count.

B.

Secondly, we are unpersuaded that defendant suffered any prejudice from 

the joinder of the multiple charges. As the trial judge observed at the sentencing 

hearing, the evidence against defendant was "overwhelming." Defendant 

confessed in writing to all four robbery incidents. He was arrested in possession 
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of instruments of the robbery, including a semi-automatic handgun, ammunition 

and the distinctive face-masks and gloves that the victims described and that 

appeared in surveillance footage. In subsequent searches of defendant's and a 

co-defendant's home, police seized fruits of the robberies, including stolen 

merchandise and the key to a car he stole from one victim (along with a parking 

ticket issued after the theft). Defendant's main defense was that he had 

confessed falsely while under pressure to clear his mother and uncle from 

suspicion, as he was driving his mother's car when arrested and he possessed 

bullet-proof vests that belonged to his uncle, a police detective. Yet, the 

evidence that defendant's will was overborne was weak.

In sum, defendant has failed to demonstrate a reasonable probability that, 

even if the charges were severed, and even if the evidence of the other robberies 

were not admissible at each trial, the result would have been different. See State 

v. Lazarchick, 314 N.J. Super. 500, 519 (App. Div. 1998) (finding the prejudice 

prong was not met where defense counsel did not object to consolidation),

disapproved on other grounds by Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 

570 (2002).

Affirmed.