SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3660-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAHIR T. SUTTON,

Defendant-Appellant.

________________________

Submitted December 2, 2021 – Decided December 10, 2021

Before Judges Alvarez and Haas.

On appeal from the Superior Court of New Jersey, Law 

Division, Warren County, Indictment No. 13-09-0422.

Joseph E. Krakora, Public Defender, attorney for 

appellant (John J. Bannan, Designated Counsel, on the 

brief).

James L. Pfeiffer, Warren County Prosecutor, attorney 

for respondent (Dit Mosco, Assistant 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Tahir T. Sutton appeals from the January 21, 2020 Law 

Division order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm.

We set forth the following pertinent facts of this matter in our prior 

opinion on defendant's and co-defendant Dionte Powell's direct appeals of their 

convictions and sentences:

In the early morning hours of March 15, 2013, 

two men wearing dark clothing, hoodies, masks, and 

gloves entered the employee breakroom of a 

convenience store gas station. Both were carrying 

handguns and one held a backpack. Once inside, the 

men encountered two employees and demanded money. 

The two men took approximately $1[,]000 from the 

employees and some cigarettes and cigar packages from 

the store shelves. As the men ran from the store, one 

of them dropped his gun and a piece of it broke off 

when it hit the floor. The man retrieved the gun, but 

left the broken piece behind.

Approximately forty minutes later, a patrol 

officer using a radar device observed a car traveling 

over the speed limit. The officer activated his overhead 

lights and siren, but the driver of the car refused to stop. 

The officer pursued the vehicle until it crashed into a 

telephone pole. Four occupants got out of the car and 

all but one ran away. The officer was able to detain a 

female passenger. The officer saw that the rear window 

of the car was broken, there was a small sledgehammer 

on the backseat, and the ignition had been broken with 

a screwdriver. The officer also observed a backpack on 

the rear floor of the car.
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At the police station, the female passenger 

identified Powell as the driver of the car and Sutton as 

one of the passengers. She told the police that she 

called Powell to ask for a ride to her mother's house. 

Shortly after she got into the car, the police chase 

began.

The police located the registered owner of the 

car, who gave his written consent to a police search of 

the vehicle and all of its contents, including "[a]ny and 

all containers found therein." Inside the backpack, the 

police found two handguns, packages of cigars and 

cigarettes, two ski masks, and other clothing. One of 

the guns was broken and the piece found at the store fit 

the missing part of the gun. Sutton's thumb print was 

found on the exterior of the car. DNA found on one of 

the ski masks matched Sutton, and DNA on the other 

mask matched Powell. DNA on cigarette butts found 

in the car also matched Sutton.

The police set up a surveillance outside the 

female passenger's home. At approximately 6:00 a.m., 

the police saw Powell and Sutton walking down the 

street. Their physical characteristics and clothing 

matched the robbery suspects. The police arrested 

defendants. A search incident to that arrest disclosed 

that each defendant was carrying approximately $500.

[State v. Sutton, Nos. A-5597-14 and A-0414-15 (App. 

Div. Sep. 22, 2017) (slip op. at 1-3), certif. denied, 232 

N.J. 394 (2018).]

Based on these facts, a Warren County grand jury charged defendant and 

Powell with:
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second-degree conspiracy to commit robbery, N.J.S.A.

2C:5-2(a)(1) and N.J.S.A. 2C:15-1(a)(1) (count one); 

second-degree burglary, N.J.S.A. 2C:18-2(b) (count 

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

(count three); second-degree possession of a weapon 

for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count 

four); third-degree unlawful possession of a handgun, 

N.J.S.A. 2C:39-5(b) (count five); third-degree theft of 

an automobile, N.J.S.A. 2C:20-3 (count six); fourthdegree resisting arrest, N.J.S.A. 2C:29-2(a) (count 

eight); and fourth-degree obstructing administration of 

law or other governmental function, N.J.S.A. 2C:29-1 

(count nine). The indictment also separately charged 

Powell with second-degree eluding, N.J.S.A. 2C:29-

2(b) (count seven).

[Id. at 3-4.]

On the first day of trial, Powell's attorney made an oral application to 

sever the trial and try each defendant separately pursuant to Bruton v. United 

States, 391 U.S. 123 (1968) (holding the Sixth Amendment right to confront 

witnesses precluded a court from admitting into evidence a co-defendant's outof-court statement implicating the defendant in the crime at a joint trial). 

Defendant's attorney joined in Powell's motion.

The law governing a severance motion is clear. "Two or more defendants 

may be tried jointly 'if they are alleged to have participated in the same act or 

transaction or in the same series of acts or transactions constituting an offense 

or offenses.'" State v. Brown, 170 N.J. 138, 159-60 (2001) (Brown I) (quoting 
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R. 3:7-7). Courts generally prefer to try co-defendants jointly, "particularly 

when 'much of the same evidence is needed to prosecute each defendant.'" Id.

at 160 (quoting State v. Brown, 118 N.J. 595, 605 (1990) (Brown II)). "That 

preference is guided by a need for judicial efficiency, to accommodate witnesses 

and victims, to avoid inconsistent verdicts, and to facilitate a more accurate 

assessment of relative culpability." Ibid. 

A single joint trial, however, may not take place at the expense of a 

defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 290 (1996). 

When considering a motion for severance, a trial court should "balance the 

potential prejudice to defendant's due process rights against the State's interest 

in judicial efficiency." Brown II, 118 N.J. at 605 (quoting State v. Coleman, 46 

N.J. 16, 24 (1965)). Trial courts apply a rigorous test for granting severance. 

Brown I, 170 N.J. at 160. A mere claim of prejudice is insufficient to support a 

motion to sever. State v. Moore, 113 N.J. 239, 274 (1988). A defendant does 

not have the right to severance simply because he or she believes a separate trial 

"would offer defendant a better chance of acquittal." State v. Johnson, 274 N.J. 

Super. 137, 151 (App. Div. 1994) (quoting State v. Morales, 138 N.J. Super. 

225, 231 (App. Div. 1975)). 
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Here, Powell's attorney stated he discussed the case with defendant's 

counsel the day before and learned that defendant's attorney planned to concede 

in his opening statement that defendant had been in the car at some point prior 

to the robbery and subsequent pursuit. Powell's attorney argued that defendant's 

position conflicted with his client's defense that he had never been in the car and 

was not involved in either the robbery or the car chase. In response, defendant's 

attorney stated his defense strategy "could be" antagonistic to Powell's position. 

However, defendant's attorney also made clear defendant would not assert that 

Powell was involved in the robbery or present in the car.

After considering the parties' arguments, the trial judge denied defendants' 

severance motion. The judge concluded that Bruton did not apply because 

defendant had not made an out-of-court statement implicating Powell in any of 

the offenses. In addition, the judge found that defendant's and Powell's defenses 

were not "so antagonistic, mutually exclusive or irreconcilable as to require 

severance." Both defendants planned to argue they were not present during the 

robbery or the eluding incident that followed, and neither planned to implicate 

the other in any of the offenses. 
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Following the joint trial, the jury convicted defendant and Powell of the 

charges set forth in the indictment. Sutton, (slip op. at 4). The judge then 

sentenced defendant to an aggregate fifteen-year prison term.1 Id. at 5.

Defendant and Powell each appealed their convictions and sentences. 

Ibid. We consolidated these appeals for purposes of issuing a single opinion. 

Id. at 1. Neither defendant challenged the trial court's denial of their severance 

motion. Id. at 5-7. For the reasons set forth in our opinion, we affirmed 

defendant and Powell's convictions for counts one through six, reversed 

defendant's convictions under counts eight and nine and Powell's convictions for 

counts seven, eight, and nine, and remanded the matter to the trial court for 

correction of the judgments of conviction. Id. at 7-14. On the remand, the trial 

court granted the State's motion to dismiss counts eight and nine of the 

indictment against defendant.

Defendant filed a timely PCR petition. In his brief, defendant argued that 

defendant's "[t]rial counsel [d]id not [e]ffectively [a]rgue for [s]everance" and 

his "[a]ppellate [c]ounsel was ineffective for [n]ot [r]aising this [s]everance 

[i]ssue on [a]ppeal." Defendant asserted his trial attorney "did not cite any case 

law" in support of the motion and "did [not] explain in detail exactly how 

1

 The judge sentenced Powell to an eighteen-year term. Id. at 4-5.
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prejudicial a joint trial would be for [defendant]." Defendant also alleged his 

appellate attorney should have challenged the judge's denial of the motion "since 

there was a good pre-trial record devoted to this [issue]."

After conducting oral argument, Judge John H. Pursel rejected each of 

these contentions in an oral decision. The judge concluded defendant failed to 

satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687

(1984), which requires a showing that trial counsel's performance was deficient 

and that, but for the deficient performance, the result would have been different. 

Judge Pursel found there was simply no legal basis for the Bruton

severance motion because neither defendant nor Powell made an out-of-court 

statement implicating the other in any of the offenses, and their defenses were 

therefore not antagonistic or mutually exclusive. Thus, regardless of the length 

or comprehensiveness of defendant's trial attorney argument on the motion, he 

would not have succeeded. 

For similar reasons, Judge Pursel ruled that defendant's appellate attorney 

properly exercised her discretion in choosing not to challenge the trial judge's 

denial of the severance motion in her appellate brief. The judge noted that the 

attorney was successful in securing the dismissal of two of the convictions and 

identifying mistakes in the judgments of conviction that needed to be corrected. 
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Therefore, the judge found that defendant's appellate counsel did not perform 

ineffectively in connection with defendant's appeal.2

On appeal, defendant raises the same contentions he unsuccessfully 

presented before Judge Pursel. He asserts:

POINT I

BECAUSE [DEFENDANT] RECEIVED

INEFFECTIVE ASSISTANCE OF COUNSEL, THE 

PCR COURT ERRED IN DENYING 

[DEFENDANT'S] PETITION FOR PCR.

(A) Legal Standards Governing Applications For 

[PCR].

(B) Trial and Appellate Counsel were Ineffective For 

Failing to Appropriately Argue for a Severance 

of the Trial.

POINT II

IN THE ALTERNATIVE, BECAUSE THERE ARE 

GENUINE ISSUES OF MATERIAL FACT IN 

DISPUTE, THE PCR COURT ERRED IN DENYING 

AN EVIDENTIARY HEARING.

(A) Legal Standards Governing [PCR] Evidentiary 

Hearings.

2

 Powell also filed a PCR petition and argued his appellate attorney was 

ineffective because he did not challenge the denial of the severance motion. 

State v. Powell, Docket No. A-2163-19 (App. Div. Mar. 31, 2021) (slip op. at

10-11). The trial court denied the petition and another panel of this court 

affirmed that determination. Id. at 14-18.
10 A-3660-19

(B) In the Alternative, [defendant] is Entitled to an 

Evidentiary Hearing.

When petitioning for PCR, the defendant must establish, by a 

preponderance of the credible evidence, that he or she is entitled to the requested 

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 

459 (1992). To sustain that burden, the defendant must allege and articulate 

specific facts that "provide the court with an adequate basis on which to rest its 

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an 

evidentiary hearing and the defendant "must do more than make bald assertions 

that he was denied the effective assistance of counsel." State v. Cummings, 321 

N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant 

evidentiary hearings and make a determination on the merits only if the 

defendant has presented a prima facie claim of ineffective assistance, material 

issues of disputed facts lie outside the record, and resolution of the issues 

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). 

We review a judge's decision to deny a PCR petition without an evidentiary 

hearing for abuse of discretion. Preciose, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the 

defendant is obliged to show not only the particular manner in which counsel's 
11 A-3660-19

performance was deficient, but also that the deficiency prejudiced his right to a 

fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). 

There is 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 690. Further, because prejudice is not 

presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific 

errors of counsel undermined the reliability" of the proceeding. United States 

v. Cronic, 466 U.S. 648, 659 n.26 (1984).

Where, as here, a defendant asserts his attorney was ineffective by failing 

to file a motion, he must establish that the motion would have been successful. 

"It is not ineffective assistance of counsel for defense counsel not to file a 

meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007). 

In addition, an appellate attorney is not ineffective for failing to raise 

every issue imaginable. State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 

2007). Instead, appellate counsel is afforded the discretion to construct and 

present what he or she deems are the most effective arguments in support of the 

client's position. Ibid.

Having considered defendant's contentions in light of the record and the 

applicable law, we affirm the denial of defendant's PCR petition substantially 
12 A-3660-19

for the reasons detailed at length in Judge Pursel's oral opinion. We discern no 

abuse of discretion in the judge's consideration of the issues, or in his decision 

to deny the petition without an evidentiary hearing. We are satisfied that the 

trial and appellate attorneys' performances were not deficient, and defendant 

provided nothing more than bald assertions to the contrary. 3

Affirmed.

3

 In his PCR petition, defendant asserted his "jury was tampered with" because 

"[p]eople in the hallways were asking jurors" whether defendant and Powell 

were guilty. Defendant also stated his trial attorney "failed to ask questions [he] 

instructed him to during trial that would have proven [his] innocence." 

Defendant did not repeat these allegations in the brief his assigned counsel filed 

prior to oral argument before Judge Pursel and the judge did not address these 

complaints in his oral decision. Defendant now asserts that the matter should 

be remanded to permit the judge to consider these contentions. We disagree. 

First, defendant waived these contentions by omitting them from his counseled 

brief. In any event, we considered defendant's argument about the alleged jury 

tampering in our opinion on defendant's direct appeal and concluded it lacked 

"sufficient merit . . . to warrant discussion in a written opinion." Sutton, (slip 

op. at 6-7). In addition, defendant's certification in support of his petition does 

not provide any details concerning the nature of the questions he presented to 

his attorney at the trial. Thus, defendant's argument on this point was 

unsupported by cognizable evidence and was a classic "bald assertion" that did 

not warrant consideration. Cummings, 321 N.J. Super. at 170.