SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1447-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

NORMAN T. GRAY, a/k/a

NORMAN FUMAN, and

NORMAN GARY,

Defendant-Appellant.

________________________

Submitted April 27, 2020 – Decided June 2, 2020

Before Judges Sabatino and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Cape May County, Indictment No. 12-06-

0383.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Louis H. Miron, Designated Counsel, on the 

brief).

Jeffrey H. Sutherland, Cape May County Prosecutor, 

attorney for respondent (Gretchen A. Pickering, Senior 

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NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

Defendant Norman T. Gray appeals the trial court's denial of his petition 

for post-conviction relief ("PCR") without an evidentiary hearing. We affirm.

The matter arises out of defendant’s plea agreement with the State. He and 

other codefendants were charged in a multicount indictment arising out of the 

shooting death of Khalil Wallace. Among other things, defendant was charged 

with first-degree murder, first-degree kidnapping, and first-degree conspiracy.

The State’s evidence showed that defendant, along with codefendants 

Andre Gross and Boris Curwen, traveled together in a van to confront Wallace, 

who apparently owed Gross money. According to Curwen, who entered into a 

plea agreement with the State as a cooperating witness, Gross told defendant 

and Curwen to “pop” Wallace if the encounter went amiss.

The three men picked up Wallace, and he got into the back seat of the van 

on the passenger side. Defendant was in the back seat on the driver’s side. 

Defendant was armed, as were Curwen and Gross. Wallace also had a gun, a 

nine-millimeter caliber pistol.

After the van traveled a distance, Gross stopped it. An altercation arose 

and shots were fired. According to Curwen, he saw defendant shoot Wallace. 
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Wallace died at the scene, and defendant and the others then attempted to 

dispose of his body.

A bullet was lodged in defendant’s arm. His theory is that the bullet was 

from a shot fired by Wallace. He claims he had justifiably fired back at Wallace 

in self-defense. The ballistics proofs revealed a nine millimeter caliber bullet 

found in the back seat cushion of the van, near where defendant had been sitting. 

The other defendants had different caliber guns.

Before trial Gross moved to dismiss the indictment, arguing the State 

should have charged the grand jurors with self-defense. Defendant’s trial 

attorney joined in that dismissal motion and likewise argued the self-defense 

theory to the court. The trial court denied the motion because the evidence 

showed that Wallace was not the aggressor, although defense counsel could 

attempt to gather more evidence of self-defense to present at trial.

The State extended to defendant a plea offer in which it would recommend 

to the court a sentence of twenty-five years, subject to the parole ineligibility 

terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(a). Defendant 

rejected that particular plea offer.

Thereafter, on the day of jury selection, defendant’s lawyer negotiated a 

much more favorable deal with the State: a plea to a reduced charge of 
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aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), carrying a recommended 

twelve-year custodial term subject to a NERA parole disqualifier, plus a 

consecutive three years for third-degree failure to dispose of human remains, 

N.J.S.A. 2C:22-1(a).

Defendant accepted this revised plea agreement. At the plea colloquy, he 

admitted to the court deliberately shooting Wallace, and made no mention of 

self-defense.

At sentencing, defendant’s attorney renewed his argument that there are 

indicia that Wallace may have shot first and been the aggressor. After hearing 

that argument, the court imposed a sentence in accordance with the plea 

agreement. 

Defendant appealed his sentence as excessive. We affirmed the sentence 

in a February 9, 2016 order. We remanded only to have the judgment of 

conviction clarify that the third-degree offense was not subject to NERA.

In his PCR petition, defendant contended his trial attorney was ineffective 

in: (1) not more aggressively pursuing a self-defense argument and (2) not 

arguing mitigating factors at sentencing that he claims could have made the 

third-degree sentence concurrent rather than consecutive.
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The PCR judge, Michael J. Donohue, issued a written opinion on August 

9, 2018 denying the petition. The judge found that defendant had not presented 

a prima facie claim of trial counsel’s ineffectiveness, and that there was no need 

for an evidentiary hearing.

 On appeal, defendant continues to press his two claims of ineffectiveness, 

and contends that an evidentiary hearing is required. His brief presents those 

points in this fashion:

POINT ONE

THE INEFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL DEPRIVED DEFENDANT OF A 

FAIR OPPORTUNITY TO DEFEND AGAINST 

THE CHARGES IN THE INDICTMENT AND 

THUS, DEFENDANT'S PLEA SHOULD BE 

VACATED OR, IN THE ALTERNATIVE, THE 

TRIAL COURT SHOULD CONDUCT AN 

EVIDENTIARY HEARING TO DETERMINE 

THE BASIS FOR COUNSEL'S FAILING TO 

PURSUE A SELF-DEFENSE CLAIM AND TO 

PRESENT EVIDENCE OF MITIGATING 

FACTORS AT SENTENCING.

POINT TWO

THE PCR COURT SHOULD HAVE 

CONDUCTED AN EVIDENTIARY HEARING 

TO ADDRESS ALL OF DEFENDANT'S 

CLAIMS.
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We have carefully considered these arguments in light of the record and 

the applicable law. Having done so, we affirm the PCR court's decision, 

essentially for the sound reasons expressed in Judge Donohue's opinion. We 

amplify his reasoning with a few short comments.

A person accused of crimes is guaranteed under the Sixth Amendment the 

effective assistance of legal counsel in his defense. Strickland v. Washington, 

466 U.S. 668, 687 (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; see 

also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test 

in New Jersey).

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." Strickland, 466 U.S. at 690. 

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

constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 42, 54 (1987) 

(citations omitted); see also State v. Perry, 124 N.J. 128, 153 (1991); Hill v. 

Lockhart, 474 U.S. 52, 59 (1985) (articulating the "reasonable probability" test 
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where a defendant claims his counsel did not properly advise him before 

entering a guilty plea).

To obtain an evidentiary hearing on a PCR application based upon 

ineffective assistance claims, a defendant must make a prima facie showing of 

deficient performance and actual prejudice. State v. Preciose, 129 N.J. 451, 462-

63 (1992). "When determining the propriety of conducting an evidentiary 

hearing, the PCR court should view the facts in the light most favorable to the 

defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citing State v. Marshall, 

148 N.J. 89, 158 (1997)); see also Preciose, 129 N.J. at 462-63.

Applying these well-settled standards here, we concur with the PCR judge 

that defendant has not mounted a prima facie case that his former attorney was 

ineffective. No evidentiary hearing was warranted.

The record substantiates that trial counsel did, in fact, make reasonable 

attempts to pursue a self-defense claim, doing so in the joint motion to dismiss 

the indictment, bringing it up again at a pretrial conference, and also at 

sentencing.

Defendant argues, in retrospect, that his counsel should have sought a 

court order to have the bullet lodged in his arm surgically removed and then see 

if a ballistics test matched that bullet with Wallace’s nine millimeter gun. Even 
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if, for the sake of discussion, such if such a hypothesized match were made, that 

would not disprove the State’s theory of defendant's guilt, supported by 

Curwen’s eyewitness testimony that defendant fired at Wallace first. Indeed, 

Wallace could have fired back and hit defendant after he was already wounded. 

Given the overall circumstances, it is highly speculative that defendant 

would have succeeded in proving self-defense. There is no entitlement to PCR 

based on such speculation. State v. Porter, 216 N.J. 343, 355 (2013) (quoting 

Marshall, 148 N.J. at 158) ("[A] defendant is not entitled to an evidentiary 

hearing if the 'allegations are too vague, conclusory, or speculative[.]'").

We also do not lose sight of the fact that defendant’s trial attorney 

negotiated a much better deal for him, with an aggregate custodial term of fifteen 

years, as compared to either the life sentence he faced at a jury trial, or the 

State’s earlier plea offer to recommend a twenty-five-year sentence.

As the PCR judge also correctly found, there is no merit to defendant's 

claim of ineffectiveness at sentencing. The record bears out that trial counsel 

did argue that mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), (cooperation 

with law enforcement) applied, noting that defendant offered to help the police 

find the missing guns. Counsel also argued for concurrent rather than 

consecutive sentences. Under State v. Yarbough, 100 N.J. 627 (1985), the body-
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disposal count is clearly a separate offense involving a discrete course of 

conduct following the homicidal shooting. The consecutive sentences were 

manifestly appropriate, and defense counsel could not have done more to 

prevent their imposition.

All other arguments presented on appeal lack sufficient merit to warrant 

discussion. R. 2:11-3(e)(2).

Affirmed.