SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0369-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON J. HARRELL,

Defendant-Appellant.

___________________________________________

Submitted May 22, 2018 – Decided June 22, 2018

Before Judges Yannotti and DeAlmeida.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment No. 

03-12-1552.

Joseph E. Krakora, Public Defender, attorney 

for appellant (David A. Gies, Designated 

Counsel, on the briefs).

Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (Joie Piderit, 

Assistant Prosecutor, of counsel and on the 

brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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.
2 A-0369-16T1

Defendant Jason J. Harrell appeals from an order entered by 

the Law Division on May 12, 2016, denying his second petition for 

post-conviction relief (PCR). We affirm.

I. 

Defendant was charged with first-degree murder, N.J.S.A. 

2C:11-3(a)(1) and (2), and possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a). Defendant was tried before a jury, 

which found him not guilty of murder, but guilty of the lesserincluded offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a), 

and the weapons charge. At sentencing, the judge merged the 

offenses, and sentenced defendant for the manslaughter to a thirtyyear term of imprisonment, with an eighty-five percent period of 

parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 

2C:43-7.2. 

Defendant appealed from the judgment of conviction dated July 

30, 2004. On appeal, defendant argued:

I. THE TRIAL COURT'S FAILURE TO CHARGE SELFDEFENSE CONSTITUTES A DENIAL OF DEFENDANT'S 

RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL 

AND REQUIRES REVERSAL OF THE DEFENDANT'S 

CONVICTION. U.S. CONST. AMENDS. V, VI AND XIV; 

N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. 

(Partially Raised Below).

II. THE DEFENDANT'S SENTENCE OF [THIRTY] YEARS 

FOR AGGRAVATED MANSLAUGHTER, WHICH WAS [TEN] 

YEARS BEYOND THE PRESUMPTIVE TERM, IS 

UNCONSTITUTIONAL AS IT IS IN VIOLATION OF THE 

DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL 
3 A-0369-16T1

RIGHTS TO TRIAL BY JURY, DUE PROCESS OF LAW 

AND A FAIR TRIAL. U.S. CONST. AMENDS V, VI AND 

XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 

AND 10.

III. DEFENDANT'S SENTENCE IS MANIFESTLY 

EXCESSIVE, UNDULY PUNITIVE AND NOT IN 

CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

IV. PROSECUTORIAL COMMENT SUGGESTING THAT 

[DEFENDANT] TAILORED HIS TESTIMONY TO THE 

STATE'S EVIDENCE VIOLATED [DEFENDANT'S] 

CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL, 

TO CONFRONT WITNESSES, TO PRESENT WITNESSES 

AND EVIDENCE IN HIS DEFENSE, AND TO A FAIR 

TRIAL. (Not Raised Below).

We affirmed defendant's conviction, but remanded the matter 

to the trial court for resentencing pursuant to State v. Natale, 

184 N.J. 458 (2005). State v. Harrell, No. A-1090-04 (App. Div. 

Nov. 2, 2006) (slip op. at 19). The Supreme Court denied 

defendant's petition for certification. State v. Harrell, 192 N.J. 

480 (2007). 

In our opinion on defendant's direct appeal, we noted that 

defendant's conviction arose from a confrontation between a group 

of Hispanic males and a group of black males during the early 

morning hours of August 24, 2003. Harrell, No. A-1090-04 (slip op. 

at 9-12). During that confrontation, defendant shot a weapon six 

times and killed a bystander, Juan Gomez. Id. at 3. 
4 A-0369-16T1

On remand, the trial court reconsidered defendant's sentence. 

The court filed an amended judgment of conviction dated February 

1, 2008, stating that a different sentence was not warranted. 

On November 7, 2007, defendant filed a pro se petition for 

post-conviction relief (PCR). Defendant claimed his trial attorney 

was ineffective because counsel did not challenge the prosecutor's 

comments in summation and seek a curative instruction. The PCR 

court assigned counsel for defendant, and in a supplemental brief, 

PCR counsel raised additional issues of trial counsel's 

ineffectiveness, specifically, the failure to call certain 

witnesses and to file a motion to exclude a knife and tie rod due 

to a lack of scientific evidence. The PCR court denied the 

application and later denied defendant's pro se motion for 

reconsideration. 

Defendant appealed and argued PCR counsel was ineffective 

because counsel had not pursued claims defendant raised in his pro 

se petition. According to defendant, PCR counsel advanced a 

meritless claim and poorly articulated other claims. We affirmed 

the denial of PCR and the denial of defendant's motion for 

reconsideration. State v. Harrell, No. A-0340-08 (App. Div. Nov. 

15, 2010) (slip op. at 8). The Supreme Court denied defendant's 

petition for certification. State v. Harrell, 205 N.J. 318 (2011). 
5 A-0369-16T1

II. 

On October 14, 2011, defendant filed a second PCR petition. 

He alleged trial counsel was ineffective because counsel failed 

to review discovery, investigate, and interview certain witnesses. 

He also alleged he was denied the effective assistance of PCR 

counsel and PCR appellate counsel. Defendant asserted, among other 

things, that PCR appellate counsel failed to argue on appeal

defendant's claims of ineffective assistance of trial counsel. 

The PCR court denied all relief. In a letter opinion dated

June 8, 2012, the court found that all of defendant's claims were 

barred under Rule 3:22-4(b) and Rule 3:22-12(a)(2). Defendant 

appealed from the order denying PCR. We held defendant's claims 

regarding PCR appellate counsel were not procedurally barred, and 

we remanded for further proceedings on those claims. State v. 

Harrell, No. A-5933-11 (App. Div. Dec. 9, 2013) (slip op. at 10). 

We also directed the PCR court to reconsider defendant's request 

for assignment of counsel. Ibid.

On remand, the PCR court assigned counsel to represent 

defendant. On May 10, 2016, the court placed an oral decision on 

the record. The court determined that Rule 3:22-5 barred 

defendant's claim that trial counsel was ineffective for failing

to contact and interview eyewitnesses to the incident and secure 

their attendance at trial. The court also determined that Rule
6 A-0369-16T1

3:22-5 barred defendant's claims that PCR counsel and PCR appellate 

counsel were ineffective for failing to contact the aforementioned 

witnesses.

The court further determined that Rule 3:22-5 did not bar 

defendant's claim that he had been denied the effective assistance 

of PCR appellate counsel. The court found, however, that defendant 

did not present a prima facie case of ineffective assistance of

PCR appellate counsel, and decided that an evidentiary hearing was 

not required. The court entered an order dated May 10, 2016, 

denying defendant's second petition for PCR. This appeal followed. 

On appeal, defendant's PCR appellate counsel raises the 

following points:

[POINT I] 

THE PCR COURT ERRED WHERE IT DID NOT CONDUCT 

AN EVIDENTIARY HEARING TO DETERMINE WHETHER 

THE DEFENDANT'S ATTORNEYS HAD A STRATEGIC 

REASON FOR NOT USING THE WITNESS STATEMENTS 

IN DEFENDING HIM.

[POINT II]

THE DEFENDANT INCORPORATES IN SUMMARY FASHION 

THE ARGUMENTS BELOW.

In his supplemental pro se brief, defendant raises the 

following arguments:

POINT I 

THIS COURT SHOULD EXERCISE ITS ORIGINAL 

JURISDICTION PURSUANT TO [RULE] 2:10-5 AND 

REVIEW THIS MATTER DE NOVO IN AN EFFORT TO 

BRING IT TO A CLOSE DUE TO ITS PROTRACTED 

HISTORY.
7 A-0369-16T1

POINT II 

DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL[] WHEN "APPELLATE PCR 

COUNSEL" FAILED TO RAISE ON APPEAL "TRIAL 

COUNSEL'S" INEFFECTIVENESS AND FAILED TO 

PROPERLY ARGUE "PCR COUNSEL'S"

INEFFECTIVENESS [AND] THE PCR II COURT ERRED 

IN FINDING "THERE'S NO REASONABLE PROBABILITY 

THAT APPELLATE [PCR] COUNSEL'S MISSING 

ARGUMENTS WOULD HAVE INFLUENCED THE APPELLATE 

DIVISION'S DECISION." 

POINT III

THIS COURT SHOULD EXTEND THE REQUIREMENTS OF

COURT [RULE] 3:22-6(d), RUE AND WEBSTER TO 

APPLY TO "APPELLATE PCR COUNSEL" OR MODIFY 

and/or ADD LANGUAGE TO REQUIRE "APPELLATE PCR 

COUNSEL" TO APPROPRIATELY RAISE ALL ISSUES 

PRESENTED IN THE COURT BELOW FOR EXHAUSTION 

PURPOSES; THE PCR II COURT ERRED IN REFUSING 

TO EXTEND THE PRINCIPLES OF [RUE] AND 

[WEBSTER]; [RULE] 3:22-6(D), OR A VARIATION 

OF THE SAME TO APPLY TO APPELLATE PCR COUNSEL; 

AND ERRED IN FINDING THAT APPELLATE PCR 

COUNSEL CAN "WINNOW OUT WEAKER ARGUMENTS ON 

APPEAL["] AND FOCUS ON ONE CENTRAL ISSUE OR 

AT MOST A FEW KEY ISSUES.

POINT IV

PCR II COUNSEL WAS INEFFECTIVE FOR FAILING TO 

RAISE THE ONLY VIABLE ISSUES TO THE PCR II 

COURT AND VIOLATED [RULE] 3:22-1(D). (Not 

Raised Below). 

III.

We turn first to defendant's contention that on remand, the 

PCR court erred by failing to conduct an evidentiary hearing on 

his petition. 

A defendant is entitled to an evidentiary hearing on a PCR 

petition if the defendant presents a prima facie case in support 
8 A-0369-16T1

of PCR, the court determines there are material issues of fact 

that cannot be resolved based on the existing record, and the 

court finds that an evidentiary hearing is required to resolve the 

claims presented. R. 3:22-10(b); see also State v. Porter, 216 

N.J. 343, 354 (2013) (citing R. 3:22-10(b)). 

To establish ineffective assistance of counsel, a defendant 

must satisfy the two-prong test established in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme 

Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, 

the defendant must first show that "counsel's performance was 

deficient." 466 U.S. at 687. The defendant must establish that 

"counsel made errors so serious that counsel was not functioning 

as the 'counsel' guaranteed the defendant by the Sixth Amendment." 

Ibid.

The defendant also must show that counsel's "deficient 

performance prejudiced the defense." Id. at 687. The defendant is 

required to establish that "counsel's errors were so serious as 

to deprive [him or her] of a fair trial, a trial whose result is 

reliable." Ibid. The defendant must establish a reasonable 

probability that but for counsel's unprofessional errors, the 

result of the proceeding would have been different. Id. at 694. A 
9 A-0369-16T1

reasonable probability is a "probability sufficient to undermine 

confidence in the outcome." Ibid.

Here, defendant argues that his trial attorney was 

ineffective because he failed to interview certain witnesses who 

provided statements regarding the shooting to detectives in the 

Middlesex County Prosecutor's Office (MCPO). Defendant contends 

he was denied the effective assistance of PCR appellate counsel 

because in the appeal from the denial of his first petition for 

PCR, appellate counsel did not raise and effectively argue this 

issue. 

We note that defendant testified at trial that in the early 

morning hours of August 24, 2003, his friend Brian Weeks was 

arguing with Mario Caprio on a street in New Brunswick, and they 

were surrounded by a group of Hispanic males and a group of black 

males. Defendant pulled up to the scene in his truck and he 

observed the crowd surrounding Weeks. Weeks told defendant to get 

a gun he had previously given to Tryshon Stokes. Defendant said 

he retrieved the gun "to make everyone get away from the area and 

that was it." 

Defendant returned to the scene and exited his truck. 

According to defendant, Weeks was surrounded by "a bunch of 

people." A person who "had" Weeks would not move, so defendant 

fired the gun downwards in front of that individual. Defendant 
10 A-0369-16T1

stated he did not try to shoot or kill anyone. He said he did not 

aim the gun specifically at any person, and the person whom he 

shot "was all the way down the street." Defendant testified that

"there was no way I intended to shoot this guy."

Defendant further testified that Weeks grabbed his arm and 

that was what "made [him] shoot to the left." He stated he did not 

know if Weeks "saw the situation like [he] saw it or he wanted me 

to stop shooting, but when I fired the gun that's when [Weeks] 

grabbed my arm or tried to take the gun from me or whatever he was 

trying to do." 

On cross-examination, defendant stated that he fired the 

first shot in the air and there was no reaction from the group. 

He fired another shot into the air and the crowd did not respond

to that shot. Defendant said he then dropped his arm and fired 

straight ahead in the direction of the group of people who were 

surrounding Weeks. Defendant stated that at this point,

"[e]veryone started to run around."

Defendant testified that Weeks was no longer surrounded. He 

admitted, however, that he fired two more shots. He stated that

Weeks grabbed his arm and pulled his arm down, but he conceded 

that he pulled the trigger two more times. Defendant said that he 

did not intentionally shoot Gomez. 
11 A-0369-16T1

On re-direct, defendant again insisted that he accidentally 

shot Gomez. He stated that after Weeks grabbed his arm, two more 

rounds went off, but he did not know Weeks was going to grab his 

arm. He claimed Weeks exerted force upon his arm. 

Earlier in the trial, Weeks had testified for the prosecution. 

Weeks stated that during the melee, he saw defendant arrive on the 

scene in his car, pull out a gun, and start shooting in his

direction. Weeks testified that he heard "like eight shots" and 

ran. During cross-examination, Weeks was asked if he grabbed 

defendant's arm or saw anyone grabbing defendant while the gun was 

going off. Weeks replied, "No."

On appeal, defendant argues that his trial attorney was 

ineffective because he failed to interview certain witnesses who 

purportedly would have corroborated his statement that Weeks 

grabbed his arm, causing him to aim the weapon in the direction 

of the victim. In support of this argument, defendant submitted 

statements that several witnesses provided to detectives in the 

MCPO.1

 In his statement, J.G. said he was a witness to the shooting. 

J.G. stated that "one of the guys" on the scene started shooting,

and that person was shooting at Carpio. The victim was hit when 

 

1 We use initials to identify the witnesses.
12 A-0369-16T1

he was running from the scene. J.G. said, "then . . . the guy just 

spinned him around where I was like his back shooting." 

L.J. told the detectives that on the night of the incident, 

he was with Weeks and others in defendant's vehicle. Defendant 

parked the vehicle and they got out. They saw Weeks and others

arguing. L.J. said there was "so much commotion" and then he heard 

shots. He saw defendant firing the gun into the crowd. He stated, 

"I seen the dude grab his arm." He identified the "dude" as "the 

Spanish kid." 

J.M. stated that he was with defendant on the night of the 

incident. They went to several clubs, and later came upon a crowd 

of people on George Street. J.M. stated that he saw Weeks and the 

"dude that got shot." J.M., defendant and others got out of 

defendant's vehicle and observed a crowd. He saw defendant firing 

a gun. J.M. said defendant "was going wild" with the gun. He saw 

defendant shoot the gun, but he did not see defendant shoot the 

victim. After the shooting, J.M. got back into the vehicle with 

defendant, and they drove off.

J.S. told the detectives he saw a vehicle drive up and four 

persons get out. J.S. said Carpio was talking in the street with 

a male who could have been black or Hispanic. J.S. saw the person 
13 A-0369-16T1

shooting at a person named "Joell."2 He was "shooting, bang, bang." 

J.S. recalled five shots directed "straight at Joell." The shooter 

told the person who was arguing with Carpio, "let's go, let's go." 

The shooter then got into the vehicle. 

Notwithstanding defendant's arguments to the contrary, we are 

convinced defendant failed to show he was denied the effective 

assistance of counsel because his trial attorney did not interview 

or present any of these witnesses at trial. Defendant asserts 

these witnesses would have corroborated his testimony that Weeks 

grabbed his arm, causing him to direct a shot at the victim. 

However, as we stated previously, Weeks testified at trial 

that he did not grab defendant's arm during the shooting. Although

defendant testified to the contrary, the additional witnesses 

defendant has identified would not have directly corroborated 

defendant's testimony. As noted, J.G. stated he saw someone spin 

defendant around, but he did not indicate when this occurred or

whether it had any effect upon the direction in which defendant 

was shooting. In addition, L.J. said he saw someone grab 

defendant's arm, but he did not state when this occurred or that 

it caused defendant to aim his shot at the victim. 

 

2 The record shows that a person named "Joel" was involved in the 

fracas; however, he was not the victim. 
14 A-0369-16T1

Furthermore, J.G.'s and L.J.'s statements indicate that it 

may have been strategically disadvantageous to elicit trial 

testimony from them. J.G. stated that he saw defendant shooting 

directly at Carpio, and L.J. said he saw defendant shooting into 

the crowd. In addition, J.M. stated that defendant "was going 

wild" with the gun, and J.S. said defendant was directing his 

shots directly at a person named "Joell."

In any event, none of these additional witnesses would have 

provided significant support to the defense. Here, defendant was 

charged with murder under N.J.S.A. 2C:11-3(a)(1) and (2), and the 

trial judge also instructed the jury on aggravated manslaughter 

and reckless manslaughter, as lesser-included offenses. As stated,

the jury found defendant guilty of aggravated manslaughter.

Criminal homicide constitutes aggravated manslaughter when 

the defendant "causes death under circumstances manifesting 

extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). On 

the other hand, reckless manslaughter can be found when the 

defendant causes the death of another person by acting 

"recklessly." N.J.S.A. 2C:11-4(b)(1). "The distinction between the

two crimes turns on the degree of probability that death will

result from the defendant's conduct." State v. Galicia, 210 N.J. 

364, 378 (2012). 
15 A-0369-16T1

A person may be found guilty of aggravated manslaughter if 

"it is probable that death will result" from defendant's conduct. 

Ibid. (citing State v. Simon, 161 N.J. 416, 507 (1999)). However, 

homicide constitutes reckless manslaughter "when it is only 

possible that death will result. Ibid. (citing State v. Curtis, 

195 N.J. Super. 354, 364 (App. Div. 1984)).

In this case, the PCR judge noted that defendant was the only 

individual who fired a gun, and he fired the gun six times into 

the crowd. The judge correctly observed that even if the jury 

believed Weeks grabbed defendant while defendant was firing the 

gun, thereby causing him to shoot in an unintended fashion, this 

did not preclude the jury from finding, based on the totality of 

the circumstances, that defendant acted with extreme indifference 

to human life.

Moreover, testimony from the additional witnesses consistent 

with the statements they provided to the MCPO would not have 

precluded the jury from finding that when defendant shot the gun

six times into the crowd, the death of some person was probable

rather than merely possible. Thus, even if counsel erred by failing 

to interview and present testimony from the additional witnesses, 

defendant failed to show that it was reasonably probable the jury 

would have found him not guilty of any offense related to Gomez's
16 A-0369-16T1

death, or not guilty of aggravated manslaughter and guilty of 

reckless manslaughter. 

Therefore, defendant failed to establish he was denied the 

effective assistance of trial counsel. For essentially these same 

reasons, defendant did not present a prima facie case of 

ineffective assistance of PCR counsel or PCR appellate counsel. 

The PCR court correctly determined that an evidentiary hearing was 

not required on defendant's second PCR petition. Porter, 216 N.J. 

at 354 (citing R. 3:22-10(b)).

We have considered the other arguments presented in 

defendant's counseled brief, and the arguments defendant has 

presented in his pro se supplemental brief. We are convinced all 

of these arguments lack sufficient merit to warrant discussion in 

this opinion. R. 2:11-3(e)(2).

Affirmed.