SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

- 5063

- 17T1

STATE OF NEW JERSEY,

Plaintiff

- Appellant,

v.

ADAM A. REED,

Defendant

- Appellant.

____________________________

Submitted January 21, 2020

– Decided

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11

- 10

- 2446.

J oseph E. Krakora, Public Defender, attorney for appellant (Andrew R obert Burroughs, Designated Counsel, on the brief).

Jill S. Mayers

, Acting Camden County Prosectuor, attorney for respondent (Linda A. Shashoua, Special Deputy Attorney General/Acting Assi stant Prosecutor, on the brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

January 29, 20202 A

- 5063

- 17T1

PER CURIAM

Defendant appeals from a February 16, 2018 order denying his petition

for post

- conviction relief (PCR). Defendant maintains that his trial counsel

rendered ineff ective assistance of counsel. Judge Michele M. Fox , who also

served as the trial judge, entered the order and rendered a fifty

- seven page
written opinion. 1

In September 2013, a grand jury indicted and charged defendant with

third

- degree possession of a c ontrolled dangerous substance (CDS), N.J.S.A.

2C:35

- 10(a)(1) ( c ount o ne); second

- degree possession of a CDS with intent to

distribute, N.J.S.A. 2C:35

- 5(b)(2) ( count t wo); third

- degree possession of a

CDS with intent to distribute within 1000 feet of a scho ol, N.J.S.A. 2C:35

- 7

( count t hree); second

- degree possession of a CDS with intent to distribute within

500 feet of a public park, N.J.S.A. 2C:35

- 7.1 ( count f our); second

- degree

resisting arrest/eluding, N.J.S.A. 2C:29

- 2(b) ( count f ive); fourth

- degree

resisting arrest, N.J.S.A. 2C:29

- 2(a)(2) ( count s ix); first

- degree attempted

murder, N.J.S.A. 2C:5

- 1 and 2C:11

- 3(a)(1) ( count s even); second

- degree

aggravated assault, N.J.S.A. 2C:12

- 1(b)(1) ( count e ight); third

- degree

1 The order denying defendant's PCR petition is dated February 16, 2018 but was filed on February 20, 2018.3 A

- 5063

- 17T1

aggravated assault with a deadly weapon, N.J.S.A. 2C:12

- 1(b)(2) ( count n ine);

fourth

- degree aggravated assault by pointing, N.J.S.A. 2C:12

- 1(b)(4) ( count

t en); third

- degree resisting arrest, N.J.S.A. 2C:29

- 2(a)(3) ( count e leven); fourth

degree possession of hollow nose bullets, N.J.S.A. 2C:39

- 3(f) ( count t welve);

second

- degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39

-
4(a) ( count t hirteen); second

- degree unlawful possession of a weapon, N.J.S.A.

2C:39

- 5(b) ( count f ourteen); and second

- degree certain persons not to have

weapons, N.J.S.A. 2C:39

- 7(b) ( count f ifteen). The judge bifurcated the certain

persons charge ( count f

ifteen).

Judge Fox presided over a jury trial, which began on May 14, 2013. On

May 31, 2013, the jury returned a guilty verdict as to all char ges ( counts o ne
through f

ourteen). On June 3, 2013, the same jury returned a guilty verdict

convicting defendant of the certain persons offense ( count f ifteen). The judge

sentenced defendant to an aggregate term of sixty

- six years in prison, subject to

f orty

- seven years and three months of parole ineligibility. 2

2 The judge merged counts o ne and t hree with count t wo; count s ix and e leven with count f

ive; counts e ight, n ine, t en, and t hirteen with coun t s even; and counts t welve and f

ourteen with count f

ifteen. As to count s even, the judge sentenced defendant to forty

- five years in prison, mandatory extended term subject to the No Early Release Act, N.J.S.A. 2C:43

- 7.2, with five years of post

- release parole supervision. As to count t wo, the judge sentenced defendant to eight years in4 A

- 5063

- 17T1

Defendant filed a direct appeal and raised the following arguments:

POINT I

REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED [DEFENDANT] HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I., ¶¶ 1, 10. (Not Raised Below).

POINT II

INSOFAR AS THE STATE FAILED TO PROVIDE ANY EVIDENCE THAT [DEFENDANT] WAS PROPERLY LIABLE FOR THE ELUDING UNDER THE STATE'S THEORY OF ACCOMPLICE LIABILITY, THAT CONVIC TION MUST BE VACATED. (Partially Raised Below).

POINT III

INSOFAR AS THE STATE FAILED TO PROVIDE ANY EVIDENCE THAT [DEFENDANT] POSSESSED ANY CDS WITH THE INTENT TO DISTRIBUTE SAME WI TH IN 500 FEET OF A PARK AS DEFINED BY N.J.S.A. 2C:35

- 7 .1, THAT CONVICTIO N MUST BE VACATED. (Partially Raised Below).

prison consecutive to count s even and subject to four years of parole ineligibility. As to count f our, the judge sentenced defendant t o seven years in prison concurrent to count t wo but consecutive to count s even. As to count f ive, the judge sentenced defendant to an eight

- year prison term consecutive to counts t wo, f our, and s even. Finally, as to count f ifteen, the judge sentenced defe ndant to a five

- year prison term with five years of parole ineligibility, consecutive to
counts t wo, f

our, f ive, and s even.5 A

- 5063

- 17T1 POINT IV

BECAUSE THE CREDIBLE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] WAS GUILTY OF THE SCHOOL ZONE OFFENSE, THE TRIAL [JUDGE] SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THAT COUNT. (Not Raised Below).

POINT V

THE SENTENCING [JUDGE] IMPROPERLY FAILED TO MERGE THE POSSESSION WITH INTENT TO DISTRIBUTE AND THE SCHOOL ZONE OFFENSE INTO THE PUBLIC PROPERTY OFFENSE.

POINT VI

THE SENTENCING [JUDGE] ERRED IN ORDERING CONSE CUTIVE SENTENCES FOR THE THREE " GROUPINGS " OF OFFENSES.

POINT VII

[DEFENDANT]'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.

In a supplemental pro se brief, defendant made the following additional

arguments, which we have renumbered:6 A

- 5063

- 17T1 POINT VIII

THE STATE COMMITTED DISCOVERY AND [ BRADY 3 ] VIOLATIONS WHEN IT FAILED TO DISCLOSE TO DEFENSE COMPUTER[

- AIDED] DISPATCH RECORDS [ CAD ] AND INFORMATION THAT [OFFICER] MARTIN WAS A MATERIAL WITNESS WHO MADE STATEMENTS OVER THE POLICE DISPATCHER EXCULPATORY TO THE DEFENSE AND CONTRADICTING [OFFICER] GONZALEZ'S CLA IM OF []ATTEMPTED MURDER[]. DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WAS VIOLATED. HIS CONVICTIONS MUST BE REVERSED AND A NEW TRIAL GRANTED.

POINT IX

DEFENDANT['S] CONSTITUTIONAL RIGHT TO DUE PROCESS WAS VIOLATED WHEN OFFIC ER

. . . SIMPSON OF THE CAMDEN COUNTY POLICE DEPT [MENT] ALLOWED POLICE RADIO TRANS[MISSIONS] WITH EXCULPATORY VALUE TO BE ERASED (DESTROYED) THUS INTERFERING WITH DEFENDANT[']S RIGHT TO PRESENT A COMPLETE DEFENSE. DEFENDANT[']S CONVICTION MUST BE REVERSED AND HIS INDICTMENT DISMISSED.

POINT X

[THE] TRIAL [JUDGE] COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED [OFFICER] SIMPSON TO TESTIFY AS A SURROGATE IN PLACE OF THE ACTUAL CRIME SCENE INVESTIGATOR WHO PROCESSED BALLISTIC EVIDENCE, MADE THE

3 Brady v. Maryland , 373 U.S. 83 (1963).7 A

- 5063

- 17T1 POLICE REPORTS AN D SIGNED THE CHAIN OF CUSTODY. [THE] TRIAL [JUDGE] COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO MOVE THE FOLLOWING INTO EVIDENCE VIA THE BUSINESS RECORD EXCEPTION: TESTIMONY OF [OFFICER ] SIMPSON (PERTAINING TO) [] ALL BALLISTIC EVIDENCE DOCUMENTATION , BALLISTIC EVIDENCE MENTIONED THEREIN ALL CHAIN OF CUSTODY IN VIOLATION OF DEFENDANT[']S U.S. CONST. [SIXTH] AMEND. CONFRONTATION CLAUSE AND N.J. CONSTITUTION ART[.] I PARA [.] 10

.

POINT XI

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR AN ADVERS E INFERENCE INSTRUCTION AND OTHER DEFENSE LEVER[A]GING DISCOVERY SANCTIONS WHEN IT WAS REALIZED THAT THE STATE HAD VIOLATED DEFENDANT[']S DUE PROCESS BY ALLOWING THE RADIO TRANSMISSION EVIDENCE TO BE DESTROYED VIOLATING DEFENDANT[']S U.S. CONST. [SIXTH] AM ENDMENT RIGHT TO COUNSEL.

POINT XII

DEFENDANT RECEIVE D INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL EVINCED IGNORANCE OF RELEVANT AND BINDING LAW BY FAILING TO OBJECT TO THE STATE[']S AND TRIAL COURT[']S LEGAL REMEDY OF ADMITTING INCOMPETENT BALL ISTIC EVIDENCE, DOCUMENTATION AND CHAIN OF CUSTODY VIA THE BUSINESS RECORDS EXCEPTION, WHICH DOES NOT8 A

- 5063

- 17T1 APPLY TO LAW ENFORCEMENT[] GENERATED DOCUMENTS.

POINT XIII

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FAMILIARIZE HIMSELF WITH THE CAMDEN POLICE DEPARTMENT COMMUNICATIONS PROCEDURE BEFORE CROSS [] EXAMINING [OFFICER] SIMPSON AND OTHER OFFICERS CONCERNING ERASED RADIO TRANSMISSIONS VIOLATING DEFENDANT[']S U.S. CONST. [SIXTH] AMEND. RIGHT TO COUNSEL AND RIGHT TO CONFRONT WITNESSES AGAINST HIM.

POINT XIV

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBTAIN EXCULPATORY [CAD] RECORDS ALTHOUGH THEY WERE AVAILABLE TO HIM UPON REQUEST AND SUPPORT THE DEFENSE THAT [OFFICER] GONZALEZ'S STOR Y OF []ATTEMPTED MURDER[] WAS NOT TRUE[,] VIOLATING DEFENDANT'S U.S. CONST. [SIXTH] AMEND. RIGHT TO ASSISTANCE OF COUNSEL.

POINT XV

[DEFENDANT]'S CONVICTION MUST BE REVERSED BECAUSE OF THE CUMULATIVE ERROR [S] THAT OCCURRED DURING TRIAL.

We affirmed the convictions and sentence. State v. Reed , No. A

- 1074

- 13 ( App.

Div. Feb. 11, 2016). The Supreme Court denied certification. State v. Reed

,
224 N.J. 529 (201 6 ). Defendant filed his pro se PCR petition in July 2016.9 A

- 5063

- 17T1

Defendant and his PCR counsel submitted a total of twenty

- six arguments.

Judge Fox conducted oral argument, entered the order under review, and

rendered an extensive written decision.

On this appeal, defendant argues:

POINT I

THE PCR [JUDGE] ERRED WHEN [SHE] FOUND DEFENDANT HAD FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL

. 1. Trial counsel was ineffective for failing to request the CAD report.

2. Trial counsel failed to cross [] examine Officers Gonzalez and Diaz about their res pective medical records.

3. Trial counsel was ineffective by failing to have [d] efendant's clothing tested for g un powder residue.

4. Trial counsel was ineffective for not demanding the State disclose all notes taken from officers involved in the case.
5. Trial counsel was ineffective by failing to ask the trial [judge] for an adverse inference charge related to the State's destruction of the audio recordings.

6. Trial counsel was ineffective when he failed to investigate Officer Frucci's history of civil rights and excessive force [c] omplaints

.10 A

- 5063

- 17T1 7. Trial counsel was ineffective for not objecting to the admission of Exhibit 7

- A depicting marijuana because

. . . [d] efendant was not indicted on a CDS charge involving possession of marijuana.

8. Tri al counsel failed to raise the issue of prosecutorial misconduct for the State's failure to preserve the video of the scene, or for not asking for an adverse inference charge.

9. Trial counsel was ineffective for failing to challenge the State's motion fo r an extended term sentence under the Graves Act.

10. Trial counsel was ineffective for not calling [Officer] Martin as a witness as he possessed exculpatory evidence [c] ontradicting [Officer] Gonzalez's testimony of shots being fired by [d] efendant.

11. Trial counsel's cumulative errors denied his client effective legal representation.

POINT II

THE PCR [JUDGE] ERRED WHEN [SHE] DENIED DEFENDANT'S CLAIM THAT HE WAS ENTITLED TO A NEW TRIAL ON THE GROUNDS OF NEWLY DISCOVERED EVIDENCE AND VIOLATION OF HIS D UE PROCESS RIGHTS UNDER [ BRADY ]

.

POINT III

AS THERE WERE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE, AN EVIDENTIARY HEARING WAS REQUIRED.11 A

- 5063

- 17T1

In a pro se supplemental brief, defendant raises the following argument s ,

which we have renumbered :

[ POINT IV ]

THE PCR [JUDGE] ABUSED [HER] DISCRETION IN NOT GRANTING DEFENDANT [] AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WHEN A FAIR ADJUDICATION REMAINS IMPOSSIBLE WITHOUT RESOLUTION OF DISPUTED MATERIAL FACTS [] IN ADDITION TO RULING O N [ INEFFECTIVE ASSISTANCE OF COUNSEL ] CLAIMS BEFORE HEARING TRIAL COUNSEL'S TESTIMONY AS TO HIS DECISION MAKING PROCESS. ( N ot R aised B elow ).

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR AN ADVERSE INFERENCE INSTRUCTION AND OTHER DEFENSE LEVER [ AG] ING DISCOVERY SANCTIONS WHEN IT WAS REALIZED THAT THE STATE HAD VIOLATED DEFENDANT'S DUE PROCESS BY ALLOWING THE RADIO TRANSMISSION EVIDENCE TO BE DESTROYED.

B. DEFENDANT RECEIVE D INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL EVINCED IGNORANCE OF RELEVANT AND BINDING LAW BY FAILING TO OBJECT TO THE STATE AND TRIAL [ JUDGE 'S ] LEGAL REMEDY OF ADMITTING INCOMPETENT BALLISTIC EVIDENCE, DOCUMENTATION AND CHAIN OF CUSTODY VIA THE BUSINESS RECORD EXCEPTIO [N]

.12 A

- 5063

- 17T1 C. TRIAL C OUNSEL WAS INEFFECTIVE FOR FAILING TO FAMILIARIZ [E] HIMSELF WITH THE CAMDEN POLICE DEPARTMENT COMMUNICATIONS PROCEDURE BEFORE CROSS EXAMINATION [OF OFFICER] SIMPSON AND OTHER OFFICERS CONCERNING ERASED RADIO TRANSMISSIONS.

D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBTAIN EXCULPATORY AND IMPEACHMENT EVIDENCE IN THE FORM OF [ CAD ] RECORDS ALTHOUGH THEY WERE AVAILABLE TO HIM UPON REQUEST AND SUPPORTED THE DEFENSE THAT [OFFICER] GONZALEZ'S STORY OF [] ATTEMPTED MURDER [] WAS NOT TRUE.

E. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO IMPEACH THE CHARACTER OF OFFICER FRUCCI BY USING THE RECORD OF MULTIPLE EXCESSIVE FORCE CLAIMS LODGED AGAINST HIM, TO DEMONSTRATE THAT FRUCCI HAS A PENCHANT FOR COMBAT AND A REASON FOR BIAS IN PROTECTING HIMSELF AGAINST FURTH ER CIVIL ACTIONS AND DISCIPLINARY REPERCUSSIONS. DEFENDANT WAS DENIED A COMPLETE DEFENSE BASED ON COUNSEL'S FAILURE TO PRESENT ANY EVIDENCE TO CHALLENGE THE COUNTS OF THE INDICTMENT ALLEGING ASSAULT ON FRUCCI.

F. THE STATE COMMITTED DISCOVERY AND [ BRADY ] VIOLATIONS WHEN IT FAILED TO DISCLOSE TO DEFENSE COMPUTERIZED DISPATCH RECORDS ( CAD ) AND INFORMATION T HAT [OFFICER] MARTIN WAS A MATERIAL WITNESS WHO MADE STATEMENTS OVER THE13 A

- 5063

- 17T1 POLICE DISPATCHER EXCULPATORY TO THE DEFENSE AND CONTRADICTING [OFFICER] GONZALEZ'S CLAIM OF [] ATTEMPTED MURDER []

.

G. DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE OF THE CUMULATIVE ERRORS THAT OCCURRED DURING TRIAL; BECAUSE

. . . COUNSEL'S INEFFECTIVEN ESS RESULTED IN DEFENDANT BEING DENIED A COMPLETE DEFENSE AND THE STATE'S CUMULATIVE DESTRUCTION OF EVIDENCE AND [ BRADY ] VIOLATIONS RESULTED IN A TRIAL THAT WAS FUNDAMENTALLY UNFAIR.

We conclude that d efendant's appeal lacks sufficient merit to warrant d iscussion

in a written opinion. R. 2:11

- 3(e)(2). We affirm substantially for the reasons

given by Judge Fox and add the following brief remarks.

Claims of ineffective assistance of counsel are considered under the two

part test enumerated in Stricklan d v. Washington , 466 U.S. 668, 687 (1984), and

adopted by our Supreme Court in State v. Fritz , 105 N.J. 42, 58 (1987). The

Strickland test requires a defendant to show that the performance of his attorney

was deficient, and that counsel's deficient performance prejudiced the defense.

Strickland , 466 U.S. at 687. We are satisfied from our review of the record that

defendant failed to de monstrate the ineffectiveness of his trial counsel under the

Strickland

- Fritz t est.14 A

- 5063

- 17T1

To meet the first part of the Strickland test, a defendant must establish that

his attorney " made errors so serious that counsel was not functioning as the

'counsel' gua ranteed the defendant by the Sixth Amendment. " Ibid. T he

defendant must rebut the " strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance[.] " Id. at 689. Defendant

failed to do so here.

T o satisfy the second part of the Strickland test, a defendant must show

" that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable. " Id. at 687. A defendant must establish " a
reasonable probability that, but fo r counsel's unprofessional errors, the result of

the proceeding would have been different. " Id. at 694. The second prong of the

Strickland test also requires a defendant to show that counsel's alleged

deficiency caused prejudice. Fritz , 105 N.J. at 52.

We are convinced the PCR judge correctly determined that the record

failed to present a prima facie case of ineffective assistance of coun sel

. We

further reject defendant's contention that an evidentiary hearing was required as

defendant failed to demonstrate a " reasonable likelihood of succeeding " on his

ineffective assistance claim. State v. Preciose , 129 N.J. 451, 46 3 (1992).

Because de fendant failed to make out a prima facie case of ineffective assistance15 A

- 5063

- 17T1

of counsel , the judge properly adjudicated the petition without an evidentiary

hearing.

Affirm ed

.