SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4040-18

 A-4456-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBBY R. WILLIS, a/k/a

ROBERT WILLIS, RANDY

WILLIS, ROBBY WILLIS,

Defendant-Appellant.

________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS S. WHITE, a/k/a

MARCUS WHITE, MARCUS 

ST. CLAIR WHITE, DOT 

MARCUS ST.CLAIR, 

MARCUS ROBERTS,

Defendant-Appellant.

_________________________

NOT FOR PUBLICATION WITHOUT THE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-4040-18

Submitted October 19, 2020 – Decided

Before Judges Messano and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Indictment Nos. 10-08-

0841.

Joseph E. Krakora, Public Defender, attorney for 

appellant Robby R. Willis (Louis H. Miron, Designated 

Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for 

appellant Marcus White (Andrew R. Burroughs, 

Designated Counsel, on the brief).

Scott A. Coffina, Burlington County Prosecutor, 

attorney for respondent State of New Jersey (Alexis R. 

Agre, Assistant Prosecutor, of counsel and on the 

briefs).

PER CURIAM

We consolidate these PCR appeals for disposition in a single opinion. For 

the reasons set forth below, we affirm. 

I.

We incorporate the procedural and factual history from our opinion on 

both direct appeals in State v. White, Nos. A-5598-12, A-5611-12 (App. Div.

July 26, 2017) (slip op. at 1-2). 

March 31, 2021
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Following a joint trial, the jury found defendant Robby Willis guilty of

first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); first-degree robbery, N.J.S.A.

2C:15-1(a)(1); first-degree carjacking, N.J.S.A. 2C:15-2(a)(4); three counts of 

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree unlawful 

possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a 

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree 

terroristic threats, N.J.S.A. 2C:12-3(a). The jury found co-defendant Marcus St. 

Claire White guilty of robbery, carjacking, two counts of felony murder, and 

unlawful possession of a handgun, but acquitted him of the other counts in the 

indictment. 

After appropriate mergers, the judge sentenced Willis to: life 

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, on the felony murder 

conviction; a consecutive thirty-year term of imprisonment, with a NERA parole 

ineligibility period on the kidnapping conviction; a consecutive ten-year term of 

imprisonment, with a five-year period of parole ineligibility pursuant to the 

Graves Act, N.J.S.A. 2C:43-6(c), on the weapon possession conviction; and a 

concurrent twenty-year term of imprisonment, with a NERA period of parole 

ineligibility on the robbery conviction.
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As to White, after appropriate mergers, the judge imposed a life sentence 

with a NERA period of ineligibility on the felony murder conviction; a 

concurrent twenty-year term of imprisonment with a NERA period of parole 

ineligibility on the robbery conviction; and a consecutive ten-year term of 

imprisonment, with a five-year parole ineligibility period under the Graves Act 

for the weapon possession conviction.

II.

On September 2, 2009, police discovered the lifeless body of Lyudmilla 

Bershteyn in a field in Mansfield Township, a short distance from the New 

Jersey Turnpike. A witness who was jogging nearby told police he saw the 

woman staggering in the field before she collapsed; another witness described 

an SUV entering the road from a nearby wooded area at a high rate of speed. 

The victim operated a property management company and was last seen earlier 

in the morning of September 2 after inspecting an apartment in Philadelphia. At 

the time, she was sitting in her silver 2009 Murano SUV. An autopsy revealed

she died from a single contact gunshot wound below her ear.

In the morning of September 3, at approximately 1:30 a.m., Officer 

Charles Coleman of the Summerton Police Department in South Carolina, 

stopped a speeding silver Murano with Pennsylvania license plates driven by 
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A-4040-18

Lenroy Laurance. Five other people were inside, including both defendants; 

Willis's cousin, seventeen-year-old Kareem Harrison; White's girlfriend, 

eighteen-year-old Shaniqua Williams; and Williams's half-sister, sixteen-yearold Bacquea Thomas. Laurance could not produce a driver's license and, upon 

producing Bershteyn's registration, he told the officer the SUV belonged to his 

girlfriend's mother. The officer saw the occupants passing around a bag of 

snacks, grew suspicious and ordered everyone out of the car. A subsequent 

search of the Murano revealed three handguns, including one hidden inside the 

snack bag, the victim's debit card and other personal items, a portable navigation 

unit, an EZ-Pass transponder and a New Jersey Turnpike toll ticket. All six 

individuals were taken into custody and South Carolina authorities confirmed 

with Philadelphia police that the owner of the car had been reported missing. 

Local police and members of the Burlington County Prosecutor's Office who 

arrived in South Carolina questioned the occupants. Both defendants provided 

statements that were introduced to the jury in redacted form. Police pieced 

together events of the days leading up to, and following, the September 2 

carjacking of Bershteyn.

Williams, Thomas, and Harrison testified as State's witnesses at trial. 

Harrison's testimony was critical to the State's case. He provided eyewitness 
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testimony of Bershteyn's abduction by himself, Laurance and Willis, and her 

shooting death at Laurance's hand. From the EZ-Pass transponder and 

navigational device, the State introduced details of the SUV's location at various 

points and times, which corroborated much of this testimony and placed the car 

near the murder site at the time of the shooting.

In his statement, White claimed he was not involved in the abduction of 

the victim but joined the others thereafter and knew she was in the car. He 

remained in the SUV as Laurance dragged the victim into the field and shot her 

with Harrison's gun.

Willis denied any involvement at all and said he checked into an 

employment and training agency the morning of September 2, but claimed he

was sent home without any work. He remained home all day until late in the 

afternoon, when he and the others left for South Carolina. The State called a 

witness from the employment and training agency who testified the program was 

closed on September 2. The State introduced a letter, written by Willis to 

Harrison while both were in jail, in which Willis expressed anger at Harrison's 

"snitching," and told him to blame everything on Laurance.

Defendants neither testified nor produced any witnesses at trial. 
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III.

The PCR appeals were heard by Judge Gerard H. Breland, who addressed 

the defendants' claims in separate opinions. We recount Judge Breland's 

treatment of these claims separately. 

A.

Willis alleged that his trial counsel was ineffective for five reasons: failing 

to investigate alternative alibi theories; declining the court's offer of a curative 

instruction on gang affiliation testimony; failing to object to the state's

comments in summation; failing to object to the state's comments in its opening 

statement; and failing to object to the comments of the State and the victim's 

family at sentencing. Willis also alleged his appellate counsel was ineffective 

for failing to raise the issue of territorial jurisdiction on appeal. 

Willis first argued his trial counsel was ineffective for failing to 

investigate an alibi he belatedly raised. Willis's alleged he was picked up by the 

co-defendants at an Applebee's restaurant, and defense counsel should have 

investigated to find corroborating video evidence. The trial judge found Willis 

had given a video-recorded statement to police providing a different alibi; he 

said in the statement he had been picked up at his house, not Applebee's. The 

two teenage sisters in the car that day, Williams and Thomas, testified that Willis 
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A-4040-18

was already in the car when they got in at Applebee's. The PCR judge concluded 

that it was reasonable for trial counsel to not investigate Willis's Applebee's 

claim, given his failure to provide that alibi to the police, the overwhelming 

evidence at trial disproving the claim, and his failure to raise this defense at trial. 

The judge found trial counsel's election not to investigate was not ineffective 

assistance of counsel. 

Willis next argued trial counsel was ineffective for refusing the judge's 

offer of a curative instruction after testimony alluding to the gang affiliation of 

a co-defendant, Laurence. The PCR judge, after reviewing the trial record, 

concluded that Willis' trial counsel promptly objected to the testimony and 

moved for a mistrial. The mistrial motion was denied, and the judge proposed

a curative instruction to the jury, which trial counsel refused. The trial judge 

gave the curative instruction to the jury anyway. The PCR judge expressly 

found trial counsel's refusal of a curative instruction was consistent with his 

mistrial motion strategy. The judge concluded that the trial counsel's act of 

refusing the curative instruction was not ineffective assistance of counsel and 

"was well within [a] wide range of reasonable professional assistance." 

Third, Willis argued his trial counsel was ineffective for failing to object 

to various comments by the state during both openings and summations. Willis 
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argued his trial counsel should have objected during openings when the 

prosecutor described the victim as a hardworking immigrant, and during 

summation when the State offered several opinions about defense counsel's 

theory of the case and trial tactics, including: arguing defense counsel attempted

to convince the jury to "misapply the law"; told the jury, "you've been 

consistently urged by the defense to consider issues that are legally totally, 

totally irrelevant and have no bearing under the law", stated that defense counsel 

was making "inaccurate representations"; stated the defense was trying to "sell" 

something to the jury that was "just not the truth"; and finally, argued to the jury 

that, "this is like a big jigsaw puzzle. [Defense counsel wants] to start pulling 

pieces of the puzzle to the point that you can't see the picture."

The PCR judge found that all the statements were direct responses to 

arguments raised by Willis' trial counsel. The judge found mentioning that the 

victim was a hardworking immigrant was not egregious and did not deprive 

defendant of a fair trial; and there was little likelihood that the state's comments 

in its closing would have yielded sustainable objections. The PCR judge also 

found the State's presentation of a video of Willis' accomplices sitting in a police 

car during its opening was not egregious and did not deprive defendant of a fair 

trial when there was subsequent trial testimony that he and his accomplices were 
10 A-4040-18

in police cars on August 30, 2009, and on September 3, 2009. The judge 

concluded that it was a reasonable tactic for defense counsel not to object to the 

statements, and there was no ineffective assistance of counsel based on these 

arguments. 

Willis' PCR counsel raised an ineffectiveness of trial counsel claim based 

on the failure to object to certain arguments made by the State and certain 

statements made by the victim's family at sentencing. The PCR judge dismissed 

these claims because they were resolved during the direct appeal. We affirmed 

the sentence on appeal,

1

and the PCR judge concluded that Willis made no 

showing that the appropriate sentence was affected in any way by these remarks. 

Willis also raised a PCR claim alleging appellate counsel should have appealed 

the trial judge's dismissal of defendant's territorial jurisdiction defense. The 

PCR judge quickly and properly dismissed this claim as "meritless," finding 

that, in fact, Willis did not raise a territorial jurisdiction claim below, but rather 

a personal jurisdiction defense. 

After dismissing Willis' pro se allegations of ineffective assistance of 

counsel as "bald assertions," the PCR judge concluded that Willis' had not made 

a prima facie claim in support of post-conviction relief, State v. Preciose, 129 

1

 White, slip op. at 29.
11 A-4040-18

N.J. 451, 462 (1992). He found Willis did not make a case for an evidentiary 

hearing and denied post-conviction relief. 

B.

Given the joint trial, there was predictable overlap between White's PCR 

arguments and those made by Willis. The PCR judge addressed White's claims

in a separate and thorough opinion. We will be brief where the arguments on 

appeal and the findings before the PCR court are identical to Willis'. 

White argued ineffective assistance of his trial counsel for failing to object 

to the State's comments about the victim's background and its use of video 

showing White sitting in a police car during openings. White also argued in a 

pro se brief that defense counsel should have objected to the trial judge's curative 

instruction on the gang affiliation reference during testimony before the jury. In 

both instances, the PCR judge rejected the claims, finding no ineffective 

assistance of counsel for the same reasons he expressed in the Willis PCR

decision. 

White next argued that trial counsel was ineffective because he did not 

seek an accomplice liability charge. The PCR judge rejected this claim, finding 

that White had been charged only as a principal in the felony-murder. Further, 

the PCR judge found that White himself asserted that he was "not involved in 
12 A-4040-18

the crime at all." The State's theory of the case and White's defense of actual 

innocence left White's case in a posture where the trial judge was not required 

to provide an accomplice liability charge. 

White then argued that trial counsel was ineffective for failing to object 

to a read-back of witness testimony that included street gang references. He 

also argued that appellate counsel was ineffective for failing to appeal the denial 

of trial counsel's mistrial motion. We resolved this issue on direct appeal,

concluding there was no prejudice at trial to Willis or White resulting from the 

gang affiliation testimony, and that the trial judge gave proper curative 

instructions. 2 Consequently, the PCR judge found that there was no prejudice 

to White from the failure to object to the read back or to appeal the denial of the 

mistrial motion.

As with Willis, the PCR judge concluded White failed to make a prima 

facie ineffective assistance of counsel case warranting an evidentiary hearing. 

The judge denied both applications. 

Willis makes the following arguments on appeal:

I. Defendant Was Deprived of His Constitutional Right

to the Effective Assistance of Trial Counsel and

Appellate Counsel Under the United States 

Constitution and the New Jersey Constitution.

2

 White, slip op. at 12.
13 A-4040-18

A. Trial Counsel Deprived Defendant of a 

Fair Trial by Failing to Conduct a Full PreTrial Investigation and Rendered the Jury's 

Verdict as Fundamentally Unreliable.

B. Trial Counsel Failed to Represent 

Defendant Effectively During the Course 

of the Trial Insofar as Counsel Failed to 

Accept the Trial Court's Proposal to 

Provide the Jury with a Curative Charge 

Concerning the Highly Prejudicial 

Reference to Gangs During the Testimony 

of the State's Witness.

C. Trial Counsel Failed to Represent 

Defendant Effectively During Sentencing 

Insofar as Counsel Failed to Zealously 

Advocate for Defendant and Challenge the 

State's Highly Inflammatory Presentation

of Witnesses and Facts.

II. Defendant Was Deprived of His Constitutional Right 

to the Effective Assistance of Appellate Counsel 

Because Counsel Failed to Argue the Territorial 

Jurisdiction Issue Accurately.

III. The PCR Court Abused its Discretion in Not 

Conducting an Evidentiary Hearing to Address 

Defendant's Claim.

In his brief, White makes the following arguments on appeal:

I. As Mr. White Has Established, He Was Denied 

Ineffective Assistance of Trial and Appellate Counsel, 

the PCR Court Erred When It Denied His Petition for 

Post-Conviction Relief Without Holding an 

Evidentiary Hearing. 
14 A-4040-18

(1) Trial counsel's failure to make a timely 

objection to the State's opening remarks 

was prejudicial to his client's interest to 

receive a fair and reliable trial.

(2) Trial counsel's failure to object to the 

State playing a video showing Mr. White 

detained in a police vehicle was 

prejudicial. 

(3) Trial counsel was ineffective for not 

seeking an accomplice liability charge. 

II. Appellate Counsel Was Ineffective for Failing to 

Raise Certain Cognizable Claims on Direct Appeal. 

(1) Appellate counsel failed to argue that 

the trial court erred by not sua sponte 

instructing the jury on accomplice liability. 

(2) Appellate counsel was ineffective for 

not appealing the denial of a mistrial and 

the read-back of testimony concerning 

gang affiliation. 

III. As There Were Genuine Issues of Material Facts in

Dispute, an Evidentiary Hearing Was Required. 

IV.

When petitioning for PCR, a defendant must establish he is entitled to

"PCR by a preponderance of the evidence." State v. O'Donnell, 435 N.J. Super.

351, 370 (App. Div. 2014) (quoting Preciose, 129 N.J. at 459). We analyze

ineffective assistance of counsel claims by using the two-prong test established
15 A-4040-18

by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694 (1984). 

See Preciose, 129 N.J. at 463; see also State v. Fritz, 105 N.J. 42, 58 (1987). 

The first prong of the Strickland test requires a defendant to establish counsel's

performance was deficient. Preciose, 129 N.J. at 463. "The second, and far

more difficult, prong is whether there exists 'a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different.'" Id. at 463-64 (quoting Strickland, 466 U.S. at 694). 

To obtain a new trial based on ineffective assistance of appellate counsel,

a defendant must establish that appellate counsel failed to raise an issue that

would have constituted reversible error on direct appeal. State v. Echols, 199

N.J. 344, 361 (2009). Appellate counsel will not be found ineffective if

counsel's failure to appeal the issue could not have prejudiced the defendant

because the appellate court would have found either, that no error had occurred

or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State

v. Harris, 181 N.J. 391, 499 (2004). Consequently, appellate counsel is not

required to raise every possible issue and need only raise issues that have a

reasonable possibility of success. State v. Gaither, 396 N.J. Super. 508, 515-16

(App. Div. 2007); see also State v. Morrison, 215 N.J. Super. 540, 549 (App.
16 A-4040-18

Div. 1987) (noting "appellate counsel does not have a constitutional duty to raise

every nonfrivolous issue requested by the defendant").

There exists a strong presumption that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment. Strickland, 466 U.S. at 689. Further, because prejudice

is not presumed, defendant must demonstrate how specific errors by counsel

undermined the reliability of the proceeding. State v. Drisco, 355 N.J. Super

283, 290 (App. Div. 2002) (citing U.S. v. Cronic, 466 U.S. 648, 659 (1984)).

V.

Where a PCR court does not conduct an evidentiary hearing, we "conduct

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

court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting

Harris, 181 N.J. at 421). We find that neither Willis nor White have overcome

the "strong presumption that [trial] counsel rendered adequate assistance," and

that their respective counsel "exercise[d] reasonable professional judgment." 

Strickland, 466 U.S. at 689. After reviewing the extensive record and for the

reasons stated in Judge Breland's cogent written opinions, we are satisfied the

defendants failed to prove ineffective assistance of counsel, trial or appellate.

Preciose, 129 N.J. at 463. For completeness' sake, we note that Willis and
17 A-4040-18

White also failed to satisfy the second prong of Strickland. Neither defendant

showed their proceedings would have been different but for the errors they

alleged. Id. at 463-64. Prejudice cannot be presumed. Defendants failed to

draw the required nexus between "specific errors of counsel" and any harm to

the reliability of their trial. Drisco, 355 N.J. Super at 290 (citing Cronic, 466

U.S. at 659). No evidentiary hearing is merited.

Affirmed.