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, o f 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
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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 lesser

included offense of aggravated manslaughter, N.J.S.A. 2C:1 1
- 4(a), and the weapons charge. At sentencing , the judge merged the offenses, and sentenced defendant for the manslaughter to a thirty

year term of imprisonment , with an eighty

- five percent period o f 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 SELF DEFENSE 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 CONSTITUTIONAL3 A - 0369
- 16T1 RIGHTS TO TRIAL BY JURY, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. C ONST. 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 p etition 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
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On r emand, the trial court reconsidered defendant's se ntence. 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 at torney 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 counse l's ineffectiveness, specifically, the fa ilure 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 reconside ration . 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 affirm ed 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 1 4, 2011, defendant filed a second PCR petition . He alleged trial counsel was ineffective because counsel failed
to r eview discovery, investigate, and interview certain witnesses . He also alleged he was denied the effective assistance o f 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 cou rt denied all relief. In a letter opinion dated

Jun e 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. W e held defendant's claims regarding PCR appellate counsel were not procedurally barred, a nd 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, t he PCR court a ssigned counsel to represent
defendant. On May 10, 2016 , the court placed an oral decision on
the record. The court de termined that Rule 3:22
- 5 barred defendant's claim that trial counsel was ineffective for failing to contact and interview eyewitnesses to the inciden t and secure their attendance at trial. The court also determined that Rule6 A - 0369
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3:22
- 5 barred defendant's claim s that PCR counsel and PCR appellate counsel were ineffective for failing to contact the aforementioned witnesses . The court further dete rmined 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 a ssistance of
PCR appellate counsel, and de cided 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 followi ng points:

[ POINT I ] THE PCR COURT ERRED WHERE IT DID NOT CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE DEFENDANT'S ATTORNEY S 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 PROTRA C TED 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 F A ILED TO PROPERLY ARGUE "PCR COUNSEL'S " INEFFECTI VENESS [ 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 ISSUE S 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 support8 A - 0369
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of PCR, the court determines there ar e 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); s ee also State v. Porter , 216 N.J. 343, 354 (2013) (citing R. 3:22
- 1 0(b)). To establish ineffective assistance of counsel, a defendant must satisfy the two

- prong test established in Strickland v. Washington , 466 U.S. 668, 6 87 (1984), and adopted by our Supreme Court in State v. Frit z , 105 N.J. 42, 58 (1987). Under Strick land , 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 Amend ment." 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 re sult 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. A9 A - 0369
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reasonable probability is a "probability sufficient to underm ine confidence in the outcome." Ibid. Here, defendant argues that his trial attorney was ineffective because he failed to interview certain witnesses who provided statement s regarding the shooting to detectives in the Middlesex County Prosecutor's Office (MCPO) . Defendant contends he was denied the effective assistance o f PCR appellate counsel because in the appeal from the denial of his first petition for PCR, appellate counsel did not raise and e ffectively 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 ma les 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 b unch of people." A person who "had" Weeks would not move, so defendant fired the gun downwards in front of t hat individual . Defendant10 A - 0369
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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 who m he shot "was all the way down the street. " Defendant testifie d that
"t here was no way I intended to shoo t 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 shoo ting , but when I fired the gun that's w hen [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 t he crowd did not resp o nd 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 te stified 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
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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 W eeks was going to grab his

arm. He claimed Weeks exer ted 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 becau se 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 sev eral 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
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he was r unning from the scene . J.G. said , "t hen . . . 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 crow d . He s tated , "I seen the dude grab his arm." He identified the "dude" as "the Spanis h 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. s aid 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 vehicl e with
defendant , and they drove off. J.S. told the detectives he saw a vehi cle drive up and four
persons ge t out. J.S. said Carpio was tal k ing in the street with a male who could have been black or Hispanic. J.S. saw the person13 A - 0369
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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 an y of these witnesses at trial. Defendant asserts
th ese witnesses would have corroborated his testimony that Weeks grabbed his arm, causing him to direct a shot at the victim. However, a s we stated previously, Weeks testified at trial that he did not grab defendant's arm during the shooting. Although defen dant 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
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Furthermore, J.G.'s and L. J.'s statements indicate that it may have been strategically disadvantageous to elicit trial testimony from the m . 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. state d that defendant "was going wild" with the gun, and J.S. said def endant was directing his shots directly at a person named " Joell. " In any event , n one of the se 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 manslaugh ter. Criminal homicide constitutes aggravated manslaughter when the defendant "causes death under circumstances manifesting extreme indifferenc e to human life. " N.J.S.A. 2C:11
- 4(a)(1). On the other hand, reckless manslaughter can be found when the defendan t 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 wi ll result from the defendant's conduct." State v. Galicia , 210 N.J. 364, 3 78 (2012) .15 A - 0369
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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
po ssible 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 cor rectly observed that even if the jury believed Weeks grabbed defendant while defendant was firing the
gu n , 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 witness es, defendant faile d to show that it was reasonably probable the jury would have found him not guilty of any offense related to Gomez's16 A - 0369
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death , or not guilty of aggravated manslaughter and guilty of
reckless manslaughter . Th erefore , defendant failed to establish he was denied the effective assistance of tr ial counsel . For essentially these same reasons, defendant did not present a prima facie case of in effective 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.