SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0754-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH CODY, a/k/a JOSE 

CODY, JOSIE L. CODY, 

JOISE CODY and LEE CODY

Defendant-Appellant.

____________________________

Submitted April 21, 2020 – Decided May 22, 2020

Before Judges Yannotti, Currier and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 12-11-2741.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Amira Rahman Scurato, Designated

Counsel, on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Barbara A. 

Rosenkrans, Special Deputy Attorney General/Acting 

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NOT FOR PUBLICATION WITHOUT THE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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Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Joseph Cody appeals the May 29, 2018 Law Division order 

denying his petition for post-conviction relief (PCR), claiming he received 

ineffective assistance of trial and appellate counsel. We affirm.

I.

We briefly summarize the relevant facts from the record. Defendant was 

convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 

N.J.S.A. 2C:15-1(b); first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree

unlawful possession of a blunt object under inappropriate circumstances, 

N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon with an unlawful 

purpose, N.J.S.A. 2C:39-4(d) following a jury trial. The convictions arose from 

the robbery of Surjit Singh, an attendant at a gas station in Newark.

After eleven hours of deliberations, the jury reported they were at an 

impasse. The trial court, who was also the PCR court, instructed the jury to 

continue its deliberations, gave the instruction approved in State v. Czachor, 82 

N.J. 392 (1980), and provided a written copy of the jury charge over the 

objection of defense counsel. The jury also heard readbacks of Singh and 

Lorraine Bellamy's testimony.
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Following a guilty verdict on all counts, the trial court imposed a sentence 

of twenty-five years imprisonment with an eighty-five percent period of parole 

ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, 

and five years of parole supervision upon release. The judge also imposed a 

discretionary extended term for persistent offenders under N.J.S.A. 2C:43-

7.1(b). We affirmed defendant's convictions and sentence. State v. Cody, No. 

A-5005-13 (App. Div. June 20, 2016). The Supreme Court denied defendant's 

petition for certification. State v. Cody, 228 N.J. 503 (2017).

Thereafter, on April 11, 2017, defendant filed a pro se petition for PCR 

alleging ineffective assistance of trial and appellate counsel and seeking an 

evidentiary hearing. In his petition, defendant raised the following issues:

POINT I

TRIAL COUNSEL WAS CONSTITUTIONALLY 

DEFICIENT FOR FAILURE TO MOTION THE 

TRIAL COURT FOR A MOTION TO SUPPRESS 

THE INADMISSIBLE EVIDENCE SEIZED FROM 

PETITIONER DUE TO "FRUITS OF SUCH AN 

UNLAWFUL ARREST," WHICH VIOLATED BOTH 

THE UNITED STATES AND NEW JERSEY 

CONSTITUTIONS['] GUARANTEE [OF] THE 

RIGHT TO BE FREE FROM UNREASONABLE 

SEARCHES AND SEIZURES. U.S. CONST. AMEND 

IV; N.J. CONST. ART. 1, 7.

POINT II
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TRIAL COUNSEL WAS INEFFECTIVE DURING 

THE PLEA NEGOTIATIONS WHEN HE 

MISADVISED PETITIONER THAT THE VIDEO 

AND CLOTHING EVIDENCE WOULD NOT BE 

USED AGAINST HIM AT TRIAL.

In his petition, defendant argued that the Newark police officers had 

reasonable suspicion to stop the gold Nissan he was a passenger in and being 

operated by co-defendant Arthur Armstrong, but did not have probable cause to 

arrest him. An off-duty fireman, Tashon Brown, was in the gas station's 

convenience store when the robbery took place. Brown followed defendant and 

co-defendant, his brother Victor Cody, and observed them enter the Nissan. 

Brown called the police and gave them the license plate number and the location 

of the vehicle. Defendant claimed the evidence seized as a result of his arrest 

should have been suppressed and appellate counsel's failure to raise this 

argument on appeal constituted ineffective assistance.

Additionally, defendant asserted that his trial counsel was ineffective 

during plea negotiations because he advised defendant that the surveillance 

video would only be admissible for "show-up identification evidence" and no 

other purpose at trial. He also claimed trial counsel led him to believe that 

evidence obtained at the time of his arrest would be inadmissible at trial because 

none of the witnesses described the clothing he wore. According to defendant, 
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if Victor's trial counsel had not misled them on these proofs, he likely would 

have accepted the ten-year plea deal offered by the State instead of proceeding 

to trial.

Defendant was assigned PCR counsel. In addition to defendant's 

arguments, PCR counsel argued the following points:

POINT I

PETITIONER WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM PRETRIAL, AT TRIAL AND ON APPEAL, 

NECESSITATING GRANTING HIS PETITION FOR 

POST-CONVICTION RELIEF. U.S. CONST.

AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 10.

A. Trial And Appellate Counsels' Failure To 

Address The Trial Court Not Making The 

Required Inquiry Of The Clearly Deadlocked 

Jury "Whether Further Deliberations Would 

Likely Result In A Verdict" Resulted In 

Ineffectiveness Of Trial And Appellate Defense 

Counsel.

B. Appellate Counsel's Failure To Raise The Trial 

Court's Sua Sponte And Unasked For Intrusion 

Into Jury Deliberations Resulted In The 

Conviction's Affirmance By The Appellate 

Division And In Ineffective Assistance Of 

Counsel.

C. Trial Counsel's Failure To File And Argue A 

Motion To Suppress Resulted In The Admittance 

Of The Distinctive Shirt And Other Items Into 
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Evidence And In Ineffective Assistance Of 

Counsel.

D. Counsel's Failure To Move To Suppress All 

Evidence And Identifications Of The Defendants 

And Appellate Counsel's Failure To Raise This 

Issue On Appeal, Resulted In Ineffectiveness Of 

Counsel.

E. Trial Counsel's Lack Of Substantial Interaction 

With The Petitioner, Failure To File Motions,

And Failure To Pursue An Exculpatory 

Explanation For The Recovered Money, Resulted 

In Ineffective Assistance Of Counsel.

F. The Petitioner Adopts The Points And 

Arguments Submitted On Behalf Of The CoDefendant, [Victor] Cody.

On April 16, 2018, the PCR court heard oral argument and reserved 

decision. On June 1, 2018, the PCR court issued a comprehensive, twenty-five 

page written opinion denying defendant's petition without an evidentiary 

hearing. The PCR court considered the merits of each of defendant's claims and 

found he failed to demonstrate either his trial counsel or appellate counsel was 

ineffective.

The PCR court held defendant "failed to establish a prima facie case in 

support of any claim" and "an evidentiary hearing would not aid this court in its 

decision to deny all of [defendant's] claims." The PCR court further determined 
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that some of defendant's claims were raised, addressed on the merits, and 

rejected on direct appeal.

Ultimately, the PCR court concluded defendant failed to demonstrate that 

either his trial counsel or appellate counsel was ineffective. More specifically, 

the PCR court found the restraint on defendant's liberty "arose to an 

investigative detention, rather than a custodial arrest," pursuant to Terry v. Ohio, 

392 U.S. 1 (1968). The PCR court noted that "[s]ome restraint of a suspect's 

liberty is inherent in any 'show-up'" and the detention was no longer than 

reasonably necessary to facilitate the identification process, lasting fifteen 

minutes. Therefore, the PCR court determined that defendant failed to establish 

his trial counsel was ineffective for failing to move to suppress the show-up 

identifications under Rule 3:5A.

The PCR court found defendant was not arrested until Singh identified 

him and Victor Cody as the perpetrators. Singh stated defendant "struck him in 

the eye with some type of object." At that point, the PCR court determined the 

officer had probable cause to arrest defendant. A passerby, Bellamy, observed 

the robbery and physically described defendant and his brother as they ran from 

the scene of the crime. Surveillance video showed two men—one "wore a 

hooded coat while the other wore a shirt with a distinctive cross pattern on the 
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back . . . ." Defendant's clothing matched the description given by Bellamy to 

the police. The PCR court found the officers had "sufficient objective 

justification to remove" defendant from the Nissan and his "clothing remained 

visible on the front passenger floorboard" in plain view.

Moreover, the PCR court concluded that appellate counsel's failure to 

raise these claims on direct appeal did not rise to the level of ineffective 

assistance of counsel. On appeal, defendant raises the following points:

POINT I

THE PCR COURT ERRED IN DENYING THE 

DEFENDANT'S PETITION FOR PCR WITHOUT 

AFFORDING HIM AN EVIDENTIARY HEARING 

TO FULLY ADDRESS HIS CONTENTION THAT HE 

FAILED TO RECEIVE ADEQUATE LEGAL 

REPRESENTATION AT THE TRIAL AND 

APPELLATE LEVELS.

A. RELEVANT CASE LAW.

B. INEFFECTIVE ASSISTANCE OF COUNSEL 

OCCURRED WHEN TRIAL COUNSEL OBJECTED 

TO THE ISSUE OF THE COURT'S IMPROPER 

RESPONSE TO THE JURY'S QUESTION 

REGARDING BEING DEADLOCKED AND 

APPELLATE COUNSEL FAILED TO RAISE THE 

ISSUE ON APPEAL.

C. THE PCR COURT WAS FACTUALLY 

INCORRECT IN DENYING PCR FOR THE REASON 

THAT THE MATTER HAD BEEN PREVIOUSLY 

RAISED ON DIRECT APPEAL WHEN PCR 
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COUNSEL CLEARLY SHOWED THAT THE ISSUE 

HAD NOT BEEN RAISED DUE TO 

INEFFECTIVENESS OF PRIOR COUNSEL.

In his pro se supplemental brief, defendant raises the following additional

points:

POINT I

TRIAL COUNSEL WAS INEFFECTIVE FOR 

FAILING TO OBJECT TO THE JURY 

INSTRUCTIONS FOLLOWING THE JURY'S 

QUESTION REGARDING BEING DEADLOCKED 

WHICH VIOLATED THE PETITIONER'S FEDERAL 

AND STATE CONSTITUTIONAL RIGHT TO A 

FAIR TRIAL.

POINT II

APPELLATE COUNSEL WAS INEFFECTIVE FOR 

FAILING TO RAISE THAT THE TRIAL COURT 

IMPROPERLY HANDLED THE JURY'S 

QUESTIONS PERTAINING TO THEM BEING 

DEADLOCKED WHICH VIOLATED THE 

PETITIONER'S FEDERAL AND STATE 

CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

POINT III

TRIAL COUNSEL'S FAILURE TO PROPERLY 

CONSULT WITH PETITIONER, TO FILE 

MOTIONS, AND TO PURSUE [AN] 

EXCULPATORY DEFENSE FOR THE MONEY 

RECOVERED THAT WAS IN DISPARITY WITH 

WHAT WAS TAKEN FROM THE VICTIM 

CONSTITUTED INEFFECTIVE ASSISTANCE OF 

COUNSEL WHICH VIOLATED THE PETITIONER'S 
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FEDERAL AND STATE CONSTITUTIONAL RIGHT 

TO A FAIR TRIAL.

POINT IV

THE CUMULATIVE EFFECT OF TRIAL AND 

APPELLATE COUNSEL'S ERRORS DEPRIVED 

PETITIONER OF HIS RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL AND A FAIR TRIAL 

UNDER THE SIXTH AND FOURTEENTH 

AMENDMENT[S] WHICH VIOLATED THE 

PETITIONER'S FEDERAL AND STATE 

CONSTITUTIONAL RIGHT[S] TO A FAIR TRIAL.

II.

We first turn to defendant's contention that he was denied effective 

assistance of trial counsel because his attorney did not file a motion to suppress 

evidence obtained at the time of the stop. Defendant argues he was under arrest, 

not merely detained, because he was placed against the car, patted down, 

handcuffed, and subjected to a show-up identification. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant 

must meet 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). The first prong of the Strickland test requires a defendant to show 

that his or her attorney's performance was deficient. 466 U.S. at 687.
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To do so, a defendant must establish that counsel's alleged acts or 

omissions fell "outside the wide range of professionally competent assistance." 

Id. at 690. This requires a showing "that counsel made errors so serious that 

counsel was not functioning as the 'counsel' guaranteed the defendant by the 

Sixth Amendment." Id. at 687.

To satisfy the second prong of Strickland, the defendant "must show that 

the deficient performance prejudiced the defense." 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. "These 

standards apply to claims of ineffective assistance at both the trial level and on 

appeal." State v. Guzman, 313 N.J. Super. 363, 374 (App. Div. 1998) (citations 

omitted).

The test also applies to defendants who reject plea offers and go to trial, 

alleging that their decision was due to an attorney's ineffective counseling. 

However, in these cases, specific instances of attorney ineffectiveness existed, 

such as assuring a client that the plaintiff had no proof of their case. Lafler v. 

Cooper, 566 U.S. 156, 164 (2012).

Petitioner bears the burden of establishing a prima facie case. State v. 

Gaitan, 209 N.J. 339, 350 (2012). "[W]e consider [a] petitioner's contentions 
12 A-0754-18T2

indulgently and view the facts asserted . . . in the light most favorable to him." 

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

In order to be entitled to an evidentiary hearing, the defendant must 

establish a prima facie claim of ineffective assistance of counsel, that there are 

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

existing record, and that an evidentiary hearing is necessary to resolve the claims 

for relief. R. 3:22-10(b). An evidentiary hearing shall not be granted "if an 

evidentiary hearing will not aid the court's analysis of the defendant's 

entitlement to post-conviction relief" or "if the defendant's allegations are too 

vague, conclusory or speculative." R. 3:22-10(e).

We review the legal conclusions of a PCR court de novo. State v. Harris, 

181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 

(3d Cir. 2004); Hakeen v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)). The de 

novo standard of review applies to mixed questions of fact and law. Ibid. Where 

an evidentiary hearing has not been held, it is within our authority "to conduct a 

de novo review of both the factual findings and legal conclusions of the PCR 

court . . . ." Id. at 421. We apply that standard here.
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Having carefully considered defendant's arguments, we affirm 

substantially for the reasons expressed by the PCR court in its well-reasoned 

written opinion. We add the following comments.

Defendant's contention that the PCR court erred in rejecting the claim that 

his trial counsel was ineffective for not filing a motion to suppress evidence 

lacks merit. Here, Brown was in the gas station's convenience store when the 

robbery took place. He followed defendant and co-defendant Victor Cody and 

saw them enter the Nissan. Brown called the police and provided them with the 

license plate number and the location of the vehicle.

The police stopped the Nissan and ordered defendant and his brother out 

of the car. Defendants were brought back to the gas station for a show-up 

identification. Singh identified defendant and his brother as the perpetrators of 

the robbery and assault fifteen minutes after the acts were committed. 

According to Singh, co-defendant Victor Cody held him while defendant struck 

him in the face with a metal object.

We are convinced the PCR court properly rejected defendant's argument 

and denied the petition. The record supports the PCR court's finding that 

defendant and his brother were not arrested until after Singh identified them as 

the perpetrators. They were stopped and detained on reasonable suspicion 
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pending the identification procedure. The PCR court aptly found that the 

detention was no longer than reasonably necessary to facilitate the identification 

process.

We also reject defendant's argument that the PCR court erred in denying 

the claim that his trial counsel was ineffective by failing to accurately inform 

him of the severe sentence he faced if he turned down the plea offer. Defendant 

asserted that if his attorney had been forthright about certain incriminating 

evidence that could be admitted at trial, he would have accepted the State's plea 

offer and not proceeded to trial. He claims Victor Cody's attorney told them that 

the evidence obtained after their arrest would not be used against them at trial 

because none of the witnesses had described the perpetrator's clothing.

Where it is claimed that trial counsel's mistaken advice regarding potential 

sentencing exposure caused a defendant to reject a plea offer and proceed to 

trial, the defendant establishes prejudice under the second prong of the 

Strickland standard by demonstrating that he would have accepted the plea offer 

if he had been aware of his sentencing exposure, that his guilty plea would have 

been accepted by the court, and that the conviction and sentence he would have 

received under the plea offer would have been less severe than those resulting 

from the trial. Lafler, 566 U.S. at 164.
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The PCR court concluded that defendant's clothing was properly obtained 

pursuant to the plain view doctrine. Bellamy reported seeing defendant and his 

brother to Brown and described the clothing (one defendant wore a dark blue 

jacket and the other a white shirt or sweatshirt). Brown observed the defendants 

hastily remove their clothing. The record supports the court's finding.

Defendant contends the PCR court wrongly rejected his claim that his 

appellate counsel was ineffective by not raising the alleged Fourth Amendment 

violations on direct appeal. We are unpersuaded by this argument. The PCR 

court determined appellate counsel was not obligated to raise a meritless 

argument, including that the investigative detention violated defendant's Fourth 

Amendment rights. The PCR court held that appellate counsel was not required 

to assert "contentions that are palpably and clearly unmeritorious." State v. 

Kyles, 132 N.J. Super. 397, 401 (App. Div. 1975). We are convinced that the 

PCR court correctly determined that defendant had not been denied the effective 

assistance of appellate counsel.

In his pro se supplemental brief, defendant argues that his trial counsel 

was ineffective for not objecting to the modified Allen1charge, approved by our 

Supreme Court in Czachor. When the jurors reported they had reached an 

 

1

 Allen v. United States, 164 U.S. 492 (1896).
16 A-0754-18T2

impasse, the trial court instructed them to continue their deliberations and gave 

them a Czachor instruction. Defendant contends his trial counsel was ineffective 

because counsel failed to object and request the court inquire whether further 

deliberations would result in a verdict. And, defendant asserts that the trial court 

should not have provided the jury with written instructions. He also contends 

appellate counsel was ineffective for failing to raise these issues on appeal. 

Defendant's arguments are without merit. 

In Czachor, our Court disapproved the charge for a deadlocked jury that 

had been sanctioned by the Supreme Court of the United States in Allen. 82

N.J. at 402. The Court held in Czachor that the conventional Allen charge was 

unduly coercive and did not "permit jurors to deliberate objectively, freely, and 

with an untrammeled mind." Ibid. Before a trial court gives a jury a Czachor

charge, it should inquire whether further deliberations would be fruitful, 

however, that is not always required.

In this case, the trial court provided the jury with the charge approved by 

the Court in Czachor, and set forth in our Model Jury Charges (Criminal). The 

record shows that the trial court did not coerce the jury into reaching a verdict. 

Defense counsel objected to the instruction but, at that point, the jury had only 

been deliberating eleven hours. The jury continued its deliberations and 
17 A-0754-18T2

returned a verdict. Defendant has not shown that the result here would have 

been different if the judge had questioned the members of the jury before giving 

the Czachor charge. Appellate counsel also was not ineffective in failing to raise 

this issue on appeal. We are satisfied that the PCR court's determination was 

not erroneous.

Defendant further argues that the PCR court erred by finding that the issue 

regarding the trial court's response to the jury's note had been raised on direct 

appeal. Our opinion on the appeal indicates that defendant did raise that issue 

in his pro se supplemental brief. Cody, slip. op. at 4. Co-defendant Victor Cody 

also raised the issue in his appeal. The appeals were consolidated and addressed 

in one opinion. We rejected Victor Cody's contention that the trial judge erred 

by providing the Czachor instruction. Id. at 32. Therefore, the issue was 

adjudicated.

For these reasons, we conclude that defendant failed to establish a prima 

facie claim of ineffective assistance of trial counsel and appellate counsel. As 

to defendant's remaining arguments, including that his trial attorney was 

ineffective for not consulting with him, failed to file motions, pursue an 

exculpatory defense, and cumulative errors at trial, we are convinced from our 
18 A-0754-18T2

review of the record that they are without sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(2).

Accordingly, an evidentiary hearing was not necessary to resolve 

defendant's petition, and we affirm the PCR court's denial of defendant's petition 

for PCR.

Affirmed.