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

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- 17T3 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. WAYNE GREENE, Defendant

- Appellant.

Submitted October 29, 2019

– Decided Before Judges Currier and Firko. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09

- 09

- 0799. Joseph E. Krakora, Public Defender, attorney for appellant (David A nthony Gies, Designated Counsel, on the briefs). Lyndsay V. Ruotolo , Acting Union County Prosecutor, attorney for respondent (Timothy M. Ortolani, Special Deputy Attorney General/Acting Assista nt Prosecutor, of counsel and on the 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

January 21, 20202 A

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Defendant Wayne Greene appeals from the denial of his petition for post

conviction relief (PCR), contending trial and appellate counsel w ere ineffective, and the PCR court improperly denied his peti tion without an evidentiary hearing. After a review of the contentions in light of the record, and applicable principles of law, we affirm.
I n 200 9 , defendant and four co

- defendants were charged in an indictment with first

- degree murder, in violation of N.J.S.A. 2C:11

- 3(a)(1)

- (2) (count one) ; fourth

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

- 5(d) (count two) ; third

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

- 4(d) (count thr ee) ; first

- degree robbery, in violation of N.J.S.A. 2C:15

- 1 (count four) ; first

- degree felony murder, in violation of N.J.S.A.
2C:11

- 3(a)(3) (count five) ; and first

- degree bias intimidation, in violation of
N.J.S.A. 2C:16

- 1(a)(3) (count six). D efendant wa s also charged with second

- degree robbery, in violation of N.J.S.A. 2C:15

- 1 (count eight), and second

- degree witness tampering, in violation of N.J.S.A. 2C:28

- 5 (count nine). After a sixteen

- day trial, defendant was found guilty of aggravated manslaughte r, in violation of N.J.S.A. 2C:11

- 4(a), a lesser

- included offense to count one, and of counts two, three, four, five and nine. He was found not guilty of count six. I n October 2011, defendant was sentenced to thirty

- five years in prison,3 A

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with a thirty

- ye ar period of parole ineligibility, on the felony murder conviction. Defendant was also sentenced to a consecutive term of ten years in prison on the witness tampering conviction

. On appeal, we affirmed the convictions and sentence but remanded for re

se ntencing on count nine. State v. Greene , No. A

- 3387

- 11 (App. Div. Oct. 30, 2014) ( s lip op. at 2

- 3). 1 At the trial, in addition to other witnesses, one of the co

- defendants , and defendant's girlfriend, Maria , testified for the State. The co

- defendant stated defendant and several others w er e targeting Hispanic people , intending to rob them on the night of th ese events

. After one of the co

- defendants struck the victim on the hea d with a baseball bat , def en dant and others went through the victim's pockets, taking his wallet and leaving the victim dead in the street. Maria left the country shortly after the murder. When she returned in 2008, she went to the police. She said defendant had called her several hou rs after the murder, crying and upset. Defendant told her he had gone "to work , " but "they overdid it." She said this meant defendant along with several of his brothers and friends had robbed people. Maria reported that defendant told her

1 On remand, defendant was sentenced to a six

- year consecutive prison term on count nine.4 A

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his friend had struck a Hispanic man in the head with a bat

. After t he man fell, de f e n dant and several others went through the man's pockets , taking his wallet

. During the trial, Maria repeated the information she had given to the police. She also said she had several conversations with defe n d a nt and that he asked her to say she was with him on the night of the murder if he was a r rested. She was frightened because defendan t said he would know if she had talked to the police , because other than his family, she was the only person he had told about the murder. Neither party obtained Maria's phone records. In his openi n g statement, d efense counsel informed the jury t hat, oth er than M aria 's testimony, there was no proof of a ny telephone conversation between defendant and M aria in the hours after the victim's death. During his cross - examination of M aria , defense counsel portrayed her as a jealous and bitter ex

- girlfriend

. Cou nsel also emphasized the State's failure to request Maria's telephone records.
D uring the cross - examination of the prosecution's lead investigator, Sergeant Jorge Jimenez, defense counsel questioned the lack of producti o n by the Sta t e of any telephone records documenting the call between defendant and
M aria

. Jimenez stated he w a s told either by the phone company or an assisting investigator that phone records were no longer in existence when requested nine5 A

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or ten months after the calls

. D uri ng his summation, defense counsel referred multiple times to the State's failure to produce these records. Jimenez also stated that defendant was hiding in a closet when they found and arrested him. Defense counsel questioned this testimony during his c ross examinati o n, noting it was not sta t ed in any police report. Thereafter, the State attempted to introduce a report prepared by police officer W

. Tyler which stated defendant was hiding in a closet prior to his arrest. The Ty l er report had n ot bee n pr oduced during discovery. When defendant objected to its use, the trial court barred t h e use of Tyler's report but permitted testimony as to the cir c umstances of the arrest from other pol i ce of fi cers who were present at the time.
I n April 2015, defendant filed a petition for PCR , and assigned counsel thereafter filed a brief. 2 Defendant argued that trial counsel was ineffective in failing to obtain and present Maria's phone records. He asserte d that the phone records would have contradicted Maria's testimony that he called her and admitted involvement in the murder. In his supplemental brief filed two years later, defendant produced records from a telephone number he claimed was his at the time of the murder. Defendant

2 Defendant also filed a supplemental memorandum of law.6 A

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said t he records were found at his grandmother's house, ne arly six years after the trial. The records were for a number different than the one Maria provided to the police. During oral argument on the PCR petition, counsel argue d the telephone records indicated that M aria perjured herself when she testified at trial that defendant called her. In addition, d efendant contended trial counsel should have requested a mistrial when the State proffered the not

- previously

- disclosed Tyler report. On May 30, 2018, the PCR court issued a comprehensive fifty

- five

- page written decision , denying the petition

. The court noted the extensive questioning of Maria by defense counsel regarding her jealousy about the relationship between defendant and his new girlfriend and referred to the inconsistencies in her testimony. Maria also admitted during cross

- examinati o n th a t the police

ne v er asked her for h e r phone rec ords. In addition, counsel attacked Maria's

cre dibility "at length" during summati o n. The c ourt determined tri a l counsel made several tactical d ecisions in his questi o n in g of Mari a that did not amount
t o ineffective assistance of counsel

. In addressing defendant's contentions regarding his and M a ria's phone

rec o rds, the court noted trial counsel used the State 's l ack of production of the

r e cords to attack Maria's credibility on numerous occasions

. In addition, the7 A

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court noted Jimenez's testimony that he was advised M a ria's phone records did
not e xist a t the time of trial. Becau s e the recor d s were not available to either
p a rty, defe n se counsel could not ha v e been ineffective for failing to secure them

. Even if the records had been produced, the PCR court noted it would not have changed the outco me of the t rial. As this court noted in the direct appeal , there w a s " overwhelming evidence" of defendant's guilt and " extensi v e circumstantial evidence of [ his ] in v ol v ement in the crimes. " Greene , slip op. at
32. The PCR court opined that the jury could have convicted defendant solely on the co

- defend an t's testimony. That testimony was corroborated by a num b er of other witne s ses. In addressing defendant's assertion regarding th e Tyler report, the court noted the report was da maging and not exculpatory to him. In addition, the trial court did not permit the State to use the report at trial. Therefore, the court concluded, defendant failed to "show how he was prejudiced by the State's failure to provide the report before his trial commenced." Furthermore, because the State did not call Tyler as a witness and the trial court barred his report, there were no grounds for a mistrial

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Finally, the court stated defendant had not presented any specific arguments as to ho w appellate counsel was ineffective. To the contrary, counsel raised numerous issues as reflected in this court's opinion on direct appeal.
D efendant presents the following arguments:
POINT I. THE FAILURE OF DEFENDANT'S TRIAL ATTORNEY TO INVESTIGATE OR O BTAIN THE TELEPHONE COMPANY'S RECORDS PERTAINING TO A CHIEF WITNESS WAS DEFICIENT WHERE DEFENDANT'S PARTICIPATION IN THE CRIME WAS DEPENDENT ON THE WITNESS' S TESTIMONY THAT DEFENDANT USED A PARTICULAR TELEPHONE NUMBER TO CONTACT HER.
POINT II. DEFENDANT WAS UNDULY PREJUDICED BY HIS TRIAL ATTORNEY'S DEFICIENT PERFORMANCE WHERE HE SIMPLY RELIED ON THE CROSS

- EXAMINATION OF A CHIEF WITNESS TO SHOW THAT THE TELEP HONE NUMBER SHE ALLEGED DEFENDANT USED TO CONTACT HER WAS NOT ASSIGNED TO HIM. POINT III. THE FAILURE OF DEFENDANT'S TRIAL ATTORNEY TO REQUEST A MISTRIAL WAS CONSTITUTIONALLY DEFICIENT WHERE HIS TRIAL STRATEGY CHANGED AFTER THE STATE'S LATE PRODUCTION OF A POLICE REPORT. POINT IV. THE PCR COURT ERRED BY DETERMINING AN EVIDENTIARY HEARING WAS NOT WARRANTED IN SPITE OF DEFENDANT'S PRIMA FACIE

. . . SHOWING9 A

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- 17T3 [ THAT ] HIS TRIAL ATTORNEY OFFERED NO EXPLANATION WHY HE DID NOT SUBPOENA THE TELEPHONE COMPANY'S REC ORDS PERTAINING TO A MATERIAL WITNESS WHERE DEFENDANT'S PARTICIPATION IN THE CRIME WAS DEPENDENT ON THE WITNESS' S TESTIMONY THAT HE USED A PARTICULAR TELEPHONE NUMBER TO CONTACT HER WHICH HE DENIED WAS ASSIGNED TO HIM.
POINT V. DEFENDANT'S APPELLATE COUN SEL WAS CONSTITUTIONALLY INEFFECTIVE FOR NOT ADDRESSING ON APPEAL THE TRIAL ATTORNEY'S FAILURE TO REQUEST A MISTRIAL. The standard for determining whether trial counsel's performance was ineffective for purposes of the Sixth Amendment was formulated 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). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two

- pronged test establishing both that: 1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and 2) the defect in performance prejudiced d efendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 687, 694.10 A

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We are satisfied from our review of the record that defendant failed to demonstrate trial and appellate counsel w ere ineffective under the Strickland

Fritz test , and we affirm substantially for the reasons expressed in the well

reasoned opinion of the trial court

. In addressing the pho ne record contentions, defendant failed to explain how Maria's records would have established the falsity of her testimony. To the contrary, trial counsel took advantage of the non

- production to attack Maria's credibility in his opening and summation and during his cross

- e x amination of her

. Furthermore, S ergeant Jimenez testified that Maria's telephone records were sought shortly after she approached the police in September 2008, but they were unavailable. Therefore, trial counsel could not have been ineffective for failing to secure records that were not available. In turning to the records defendant produced six years after the trial, they were of no probative value as they f ailed to establish that a telephone call did not take place bet ween Maria and himself

. As t he PCR court noted , the records c ould only establish that a call was not placed to M aria from that specific telephone number. However, Maria testified that she used five different telephone numbers to communicate with defendan t during the applicable time. Finally, the telephone records were in the possession of defendant's grandmother, who was present and11 A

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testified at defendant's trial

. Therefore , defendant could have produced them at any point. Even if defendant's or Maria 's t elephone records were introduced, we cannot discern the production would have changed the outcome. As we have previously stated, there was "overwhelming evidence" from which the jury could find defendant guilt y . Because defendant has not demonstrated a prima facie case of ineffective assistance of counsel, he was not entitled to an evidentiary hearing. Any remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(2). Affirmed.