STATE OF NEW JERSEY VS. JAMES R. STEWART (14-04-0872, ATLANTIC COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1688-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES R. STEWART,

     Defendant-Appellant.
________________________

                    Submitted April 21, 2021 – Decided May 19, 2021

                    Before Judges Accurso and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 14-04-0872.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Al Glimis, Designated Counsel, on the
                    brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Debra G. Simms, Deputy Attorney
                    General, of counsel and on the brief).

PER CURIAM
      Defendant James R. Stewart appeals from an order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing. He argues the

PCR court erred by rejecting his claims that his trial counsel was ineffective by

failing to show him, prior to trial, a video recording allegedly depicting him

committing the first of two robberies charged in the indictment, and his appellate

counsel was ineffective by failing to challenge the court's denial of his motion

to sever the robbery charges for trial. He also argues the PCR court erred by

denying the petition without an evidentiary hearing.            Unpersuaded by

defendant's arguments, we affirm.

                                        I.

      A grand jury returned an indictment charging defendant with two counts

of first-degree robbery, N.J.S.A. 2C:15-1. The charges arose out of two alleged

robberies occurring minutes apart. It was alleged defendant first robbed a

convenience store and then a gas station by threatening the victims in each with

immediate bodily injury or by placing them in fear of immediate bodily injury

while defendant was armed with, or threatened the immediate use of, a deadly

weapon.

      Prior to trial, defendant's counsel made an oral motion to sever the robbery

charges for trial. Counsel asserted the charged robberies involved "two different


                                        2                                   A-1688-19
victims on the same date," and defendant would suffer prejudice if the robberies

were tried together. The State argued evidence concerning each robbery proved

defendant's identity as the perpetrator of the other robbery, and also established

defendant's "common scheme or plan to rob."

      In response to the arguments of counsel, the court stated it would rule on

defendant's motion at "the next pretrial conference."          At a subsequent

proceeding, the court noted it "reviewed the discovery provided by the State to

the defense . . . and determined that joinder of the two robberies . . . [was]

appropriate given the commonality of the proofs." The court explained the

discovery materials revealed the victim of the alleged robbery of the store

identified defendant to the police after observing defendant at the gas station

where the second robbery occurred. The court further noted defendant told the

police he did not intend to rob, but instead "was there to get money . . . to go

home." The court denied the severance motion, finding the evidence of the

separate offenses was material to defendant's state of mind and defendant's

identity, which the State "must prove beyond a reasonable doubt." The trial

court therefore denied the severance motion.

      The matter was tried before a jury. In our opinion on defendant's direct

appeal from his convictions by the jury, we summarized the trial evidence. State



                                        3                                   A-1688-19
v. Stewart, No. A-4991-14 (App. Div. Dec. 13, 2016) (slip op. at 2-13). We

briefly restate the trial evidence pertinent to defendant's PCR petition.

      The owner of an Atlantic City convenience store testified that sometime

after 8:00 p.m. on January 31, 2014, defendant walked into the store wearing

"normal clothes" with "a towel pulled up around his face, [and] a cap on his

head."

Id. at 2.

Defendant kept one hand in his pocket.

Ibid.

Defendant asked the

owner for cigarettes, and then demanded "everything

in the register."

Id. at 2-3.

The owner repeated a few times his request that

defendant pay for the cigarettes, and, in response to each request, defendant

demanded everything in the register.

Id. at 3.

Defendant then left the store

"empty handed."

Ibid.

The store owner

could not recall if "defendant made any motion with the

hand he kept in his pocket," but the owner "believed defendant was armed."

Ibid. The owner explained

the store had been robbed "many times before," and

he understood that when someone has his or her hands in a pocket and demands

cash, "he [or she] is trying to rob you."

Ibid. The owner testified

he instructed

his employees not to argue with someone who demands money, and to "just give

the money and try to save your life," but he did not follow that procedure when

defendant demanded "everything in the register" because he decided to take a


                                        4                                   A-1688-19
chance with defendant.

Ibid. The store owner

did not call the police after

defendant left the store because "nothing happened," and he did not want to wait

for the police because "his shift was ending, and he wanted to go home."

Id. at

4.

      Shortly before 9:00 p.m. on January 31, 2014, at a gas station located "a

couple of blocks" from the convenience store, a station attendant sat in a glass

booth.

Ibid. Defendant pushed open

the booth's door and, with "his hand in his

pocket 'like [he had] a gun[,]' . . . shouted, 'Motherfucker, if you don't give me

the money, I'm going to kill you right now.'"

Ibid. (first alteration in

original).

The attendant testified he told defendant he was by himself, he did not have any

money, and the money was in the safe.

Ibid. When defendant pushed

past the

attendant "to get to the safe, the attendant grabbed a" piece of wood and hit

defendant with it.

Id. at 4-5.

      Defendant "went down from the blows," and the attendant ran from the

booth "and pushed the [wood] through the door handle 'to jam the door so that

[defendant] wouldn't come out.'"

Id. at 5.

The attendant stood along the wall

between the window and door of the booth because he feared defendant "might

shoot out."

Ibid. The attendant yelled

for someone to call the police.

Ibid. The

attendant could

not recall the clothes defendant wore, but he explained defendant


                                        5                                    A-1688-19
had a white towel that "covered [defendant's] face except for his eyes."

Ibid.

The police responded

to the gas station and apprehended defendant "where he

had been trapped by the attendant."

Ibid.

The convenience store

owner, while on his way home after his shift ended,

drove past the gas station, "saw the lights of the police cruisers," and also saw

defendant with the white towel "in the booth."

Ibid. The store “owner

pulled

up to a police officer and reported that defendant had just tried to rob him at his

store."

Ibid. The officer asked

the owner if the store had surveillance cameras.

Ibid. The owner responded

in the affirmative, and he and police officers went

to the store to review the surveillance recordings.

Ibid. At trial, the

store owner

identified a video recording, as well as photographs from the recording,

depicting the incident with defendant at the store. 1

Id. at 5-6.

        Defendant testified he took a train to Atlantic City on January 31, 2014

and lost his money gambling at a casino.

Id. at 6.

He did not have money to

purchase a train ticket to return home and did not want to call his mother at 8:00

p.m. and ask that she "come and get him."

Ibid.

Defendant explained “he

was not dressed for the weather," and he thought

he might have to sleep in the train station.

Ibid. He asked a

casino worker for


1
    The recording did not include audio.

                                           6                                 A-1688-19
a blanket and was given a towel that "he wrapped around his neck and face for

warmth."

Ibid. According to defendant,

he asked people for change and

received some money, ibid., but he did not feel safe "[s]o he decided to 'go to a

place that[] [was] well lit with cameras to ask individuals for money,'"

id. at 6-

7.

Defendant testified he did not intend to injure or rob anyone, but instead

simply "look[ed] for some change to get home."

Id. at 7.

      Defendant admitted going into the convenience store "and ask[ing] the

man at the counter for money to get home."

Ibid. Defendant testified the

man

"said no," so he left the store "within forty-five seconds."

Ibid. Defendant

denied asking

for cigarettes and demanding money.

Ibid. He admitted a

photograph in evidence at trial "show[ed] him in the store with a hat and the

towel around his face," but he claimed he was sneezing.

Ibid.

Defendant also testified

he did not say anything to the gas station attendant

after entering the booth.

Ibid. He explained that

when he entered the booth, the

attendant yelled at him to get out.

Ibid. Defendant stated that

when he turned

to leave the booth, the attendant began to yell and hit him with a stick.

Ibid.

Defendant said he

did not know "why the attendant was screaming," he had not

done anything wrong, and he sat in the booth "to await the police [because] the

attendant ran outside and barred the door."

Ibid.

7

                                   A-1688-19
      The jury convicted defendant of first-degree robbery of the gas station and

the lesser-included offense of second-degree robbery of the convenience store.

Id. at 7-8.

On the direct appeal, we affirmed the first-degree robbery conviction.

Id. at 16.

We reversed defendant's conviction for second-degree robbery of the

store because the trial court failed to charge the jury on the lesser-included

offense of attempted theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-1.

Ibid.

Following our remand

for a new trial on the second-degree robbery offense,

ibid., the State dismissed the charge. The Supreme Court denied defendant's

petition for certification. State v. Stewart, 

230 N.J. 518

(2017).

      Defendant filed a pro se PCR petition claiming his trial counsel was

ineffective by failing to show him, prior to trial, the video recording of the

incident at the store.   Defendant further alleged his appellate counsel was

ineffective by failing to argue the trial court erred by denying trial counsel's

motion to sever the two robbery charges. 2


2
   Defendant made other arguments before the PCR court, including claims that
trial counsel was ineffective by failing to object to the admission of the video
recording in evidence and appellate counsel was ineffective by making only one
argument on defendant's direct appeal. We address only the arguments the PCR
court rejected that defendant directly challenges on appeal. See generally
Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 

421 N.J. Super.
489

, 496 n.5 (App. Div. 2011) (explaining an issue not briefed on appeal is
deemed waived); Liebling v. Garden State Indem., 

337 N.J. Super. 447

, 465-66
(App. Div. 2001) (same).

                                        8                                   A-1688-19
      Following oral argument on defendant's PCR petition, the court issued a

written statement of reasons supporting its denial of the petition without an

evidentiary hearing. The PCR court found defendant failed to demonstrate

appellate counsel's performance was deficient by not arguing the trial court erred

by denying defendant's severance motion. The PCR court found appellate

counsel had no obligation to make a meritless argument and defendant failed to

demonstrate a challenge to the denial would have been successful. The PCR

court noted defendant failed to demonstrate the trial court abused its discretion

by denying the severance motion because the evidence concerning the two

robberies was admissible to establish defendant's common plan or scheme, and

intent. The PCR court also found defendant failed to demonstrate he was

prejudiced at trial by joinder of the two offenses or that he was prejudiced by

appellate counsel's alleged error.

      The PCR court further determined defendant failed to establish a prima

facie case his trial counsel was ineffective by failing to show him the video

recording of the incident at the convenience store prior to trial. In part, the PCR

court rejected defendant's claim, finding it was supported solely by his verified

petition and lacked corroboration through a "certification from any other party

with information corroborating his version of [the] events." The PCR court also


                                        9                                    A-1688-19
rejected the claim because defendant failed to present any evidence that the

result of the proceedings against him would have been different if he had been

shown the recording prior to trial,.

      The court entered an order denying the PCR petition.            This appeal

followed. Defendant offers the following arguments for our consideration:

            POINT I

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO ASCERTAIN THE MERITS OF HIS
            CONTENTION THAT HE WAS DENIED THE
            EFFECTIVE ASSISTANCE OF COUNSEL AND
            THAT     THE    DENIAL     MATERIALLY
            CONTRIBUTED TO HIS CONVICTION.

            A. The Prevailing Legal Principles Regarding Claims
            of Ineffective Assistance of Counsel, Evidentiary
            Hearings[,] and Petitions for [PCR].

            B. The PCR Court Erred in Rejecting Defendant's
            Argument that Appellate Counsel Rendered Ineffective
            Legal Representation by Virtue of [Counsel's] Failure
            to Appeal the Trial Court's Denial of Defendant's
            Motion to Sever the Counts of the Indictment for Trial.

            C. The PCR Court Erred in Rejecting Defendant's
            Claim that he was Denied the Effective Assistance of
            Counsel when Trial Counsel Failed to Review the
            Video Evidence with him. Defendant Proved a Prima
            Facie case of Ineffective Assistance of Counsel and was
            Entitled to an Evidentiary Hearing to Further Develop
            a Record.

                                       10                                  A-1688-19
                                       II.

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

181 N.J. 391

, 419 (2004) (quoting Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 

140 N.J. 366

, 378 (1995)). The de novo standard of review also

applies to mixed questions of fact and law.

Id. at 420.

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.

      We consider defendant's ineffective assistance of counsel claims under the

two-prong standard established by the United States Supreme Court 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). Under the first prong,

a defendant "must show . . . counsel's performance was deficient." 

Strickland,

466 U.S. at 687

. It must be demonstrated that counsel's handling of the matter

"fell below an objective standard of reasonableness" and "that counsel made

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment."

Id. at 687-88.

      Under the second prong of the Strickland standard, a "defendant must

show that the deficient performance prejudiced the defense."

Id. at 687.

There


                                       11                                   A-1688-19
must be "a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different."

Id. at 694.

A defendant

must demonstrate "counsel's errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable."

Id. at 687.

"The error committed

must be so serious as to undermine the court's confidence in the jury's verdict or

result reached." State v. Chew, 

179 N.J. 186

, 204 (2004) (citing 

Strickland, 466

U.S. at 694

).

      "With respect to both prongs of the Strickland test, a defendant asserting

ineffective assistance of counsel on PCR bears the burden of proving his or her

right to relief by a preponderance of the evidence." State v. Gaitan, 

209 N.J.

339

, 350 (2012) (first citing State v. Echols, 

199 N.J. 344

, 357 (2009); and then

citing State v. Goodwin, 

173 N.J. 583

, 593 (2002)). A failure to satisfy either

prong of the Strickland standard requires the denial of a PCR petition.

Strickland, 466 U.S. at 700

; State v. Nash, 

212 N.J. 518

, 542 (2013); 

Fritz, 105

N.J. at 52

.

                                        A.

      We first consider defendant's claim his trial counsel erred by failing to

review with him, prior to trial, the video recording of the incident at the

convenience store. He argues "[a] reasonably competent attorney would have


                                        12                                    A-1688-19
provided [him] with this essential discovery and gone over its significance in

the State's case," and his pretrial review of the recording "was essential for [him]

to knowingly and intelligently decide whether to accept a plea offer or to testify

at trial." We are not persuaded.

      In the first instance, we agree the PCR court erred by finding defendant's

verified petition alone was insufficient to present the facts supporting his claim.

PCR petitions must be "accompanied by an affidavit or certification by

defendant, or by others, setting forth with particularity," State v. Jones, 

219 N.J.

298

, 312 (2014), "facts sufficient to demonstrate counsel's alleged substandard

performance,"

ibid. (quoting State v.

Porter, 

216 N.J. 343

, 355 (2013)). There

is no requirement, however, that the facts set forth in a defendant's properly

verified petition must also be supported by corroborating evidence, including

certifications or affidavits from others, to make a prima facie showing of the

facts supporting a request for PCR. The PCR court erred by finding otherwise.

      Nonetheless, we affirm the court's rejection of defendant's claim his

counsel's performance was deficient because counsel failed to review the video

recording with him prior to trial. That is because even viewing, as we must, the

facts asserted in the verified petition "in the light most favorable




                                        13                                    A-1688-19
to . . . defendant," State v. Preciose, 

129 N.J. 451

, 462-63 (1992), defendant

failed to establish a prima case of ineffective assistance of his trial counsel.

      "Although a demonstration of prejudice constitutes the second part of the

Strickland analysis," a court has "leeway to choose to examine first whether a

defendant has been prejudiced, and if not, to dismiss the claim without

determining whether counsel's performance was constitutionally deficient."

Gaitan, 209 N.J. at 350

. Here, defendant's verified petition is bereft of any facts

establishing that but for his trial counsel's alleged error, the result of the criminal

proceeding against him would have been different. See 

Strickland, 466 U.S. at

694

(explaining the prejudice prong of the ineffective assistance of counsel

claim standard).

      Defendant's petition generally asserts only that he could have chosen "not

to go to trial after seeing the video evidence prior to trial." 3 Defendant failed to


3
   In his brief on appeal, defendant claims that had he reviewed the video
recording prior to trial, he may have accepted the State's plea offer or decided
not to testify at trial. The assertion does not support a prima facie claim of
ineffective assistance of counsel because it is not set forth in an affidavit or
certification and is not otherwise established by competent evidence. 

Jones, 219
N.J. at 312

. The arguments of counsel in a brief do not establish facts supporting
a claim for relief from a court. See Baldyga v. Oldman, 

261 N.J. Super. 259

,
265 (App. Div. 1993) ("The comments following [Rule 1:6-6] illustrate that its
purpose is to . . . eliminate the presentation of facts which are not of record by
unsworn statement of counsel made in briefs and oral arguments."); see also


                                         14                                     A-1688-19
sustain his burden of establishing prejudice, however, because he did not present

any evidence concerning the State's plea offers, if any, or the extant

circumstances when he considered them. His bald assertion about what could

have happened is insufficient to support a prima facie claim of ineffective

assistance of counsel. See State v. Cummings, 

321 N.J. Super. 154

, 170 (App.

Div. 1999) (explaining "bald assertions" are insufficient to sustain a defendant's

burden of establishing a prima facie case of ineffective assistance of counsel

under the Strickland standard).

       He also argues his counsel's failure to review the recording with him prior

to trial deprived him of the opportunity to make an intelligent decision regarding

whether to testify at trial, but the claim is undermined by the record. Defendant

did not make a commitment to the court or jury about testifying at any time prior

to the playing of the video during the State's case at trial. Defendant made the

decision to testify only after the recording was played during the State's case.

In other words, defendant was fully aware of the recording and its contents prior

to making his decision to testify at trial.




Porter, 216 N.J. at 353

(stating facts asserted in support of a PCR petition must
be "supported by affidavits or certifications based upon the personal knowledge
of the affiant or the person making the certification" (emphasis added) (quoting
State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999))).

                                        15                                  A-1688-19
      Accordingly, even if trial counsel failed to review the video recording

with defendant prior to trial, and that failure constituted deficient performance

under the first prong of the Strickland standard, defendant failed to establish a

prima facie case of ineffective assistance of counsel because he did not

demonstrate he suffered prejudice under Strickland's second prong. Defendant

presented no evidence that but for his counsel's alleged error, there is a

reasonable probability the result of his trial would have been different. See

Strickland, 466 U.S. at 694

. Defendant's failure to present evidence satisfying

Strickland's second prong required the denial of his PCR claim his counsel was

ineffective by failing to review the video recording with defendant prior to trial. 4

Id. at 700;


Nash, 212 N.J. at 542

; 

Fritz, 105 N.J. at 52

.

                                         B.

      Defendant also claims appellate counsel was ineffective by failing to

argue on direct appeal the trial court erred by denying his severance motion. A

defendant is entitled to the effective assistance of appellate counsel, and the

Strickland standard applies to a PCR claim of ineffective assistance of appellate



4
   Our determination defendant failed to satisfy his burden of establishing
Strickland's second prong renders it unnecessary to decide whether defendant
presented sufficient evidence demonstrating trial counsel's performance was
deficient under Strickland's first prong. See 

Gaitan, 209 N.J. at 350

.

                                        16                                    A-1688-19
counsel. State v. O'Neil, 

219 N.J. 598

, 610-11 (2014). Thus, defendant was

obliged to present evidence his appellate counsel's performance "fell below an

objective standard of reasonableness,"

id. at 615

(quoting 

Strickland, 466 U.S.

at 688

), and that but for counsel alleged errors, there is "a reasonable

probability" that the outcome of the appeal would have been different

, id. at 611,

617

(quoting 

Strickland, 466 U.S. at 694

).

      In order to prevail on his claim appellate counsel was ineffective,

defendant was required to demonstrate his argument the trial court erred by

denying his severance motion would have been successful on his direct appeal.

That is because an attorney is not ineffective by failing to make an argument

that lacks merit or would be unsuccessful. State v O'Neal, 

190 N.J. 601

, 619

(2007); State v. Worlock, 

117 N.J. 596

, 625 (1990).

      Based on our review of the record, we are convinced defendant failed to

demonstrate that his claim the court erred by denying the severance motion

either had merit or would have been successful on direct appeal. To obtain a

reversal of the trial court's determination, defendant was obliged to demonstrate

the trial court abused its discretion by denying the motion. See State v. Sterling,

215 N.J. 65

, 73 (2013) (explaining a denial of a severance motion will be

reversed only for an abuse of discretion); State v. Chenique-Puey, 

145 N.J. 334

,



                                       17                                    A-1688-19
341 (1996) (same). Defendant makes no showing the trial court abused its

discretion here.

      The State may properly join charges in an indictment "if the offenses

charged are of the same or similar character or are based on the same act or

transaction or on [two] or more acts or transactions connected together or

constituting parts of a common scheme or plan." R. 3:7-6. Relief from a joinder

of charges may be granted in the trial court's discretion "if a party is prejudiced

by their joinder." State v. Oliver, 

133 N.J. 141

, 150 (1993).

      A reviewing court considers a trial court's decision permitting two or more

offenses to be tried simultaneously to "assess whether prejudice is present."

Sterling, 215 N.J. at 73

. "The test for assessing prejudice is 'whether, assuming

the charges were tried separately, evidence of the offenses sought to be severed

would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining

charges.'"

Ibid. (alteration in original)

(quoting 

Chenique-Puey, 145 N.J. at

341

). "[T]he evidence of other crimes or bad acts must be 'relevant to prove a

fact genuinely in dispute and the evidence is necessary as proof of the disputed

issue.'"

Ibid. (quoting State v.

Darby, 

174 N.J. 509

, 518 (2002)). To be

admissible, the evidence must satisfy the requirements of N.J.R.E. 404(b). Ibid.;




                                       18                                    A-1688-19
see also State v. Cofield, 

127 N.J. 328

, 338 (1992) (establishing the four-part

standard for admissibility of N.J.R.E. 404(b) evidence).

      Before the PCR court and on appeal, defendant argues only that his

appellate counsel should have challenged the denial of his severance motion

because the trial court erred by finding that evidence about each of the alleged

robberies would be admissible to establish defendant's identity in the trial on the

other offense. As the PCR court correctly found, however, the State argued

before the trial court that evidence concerning each alleged robbery was

admissible for other reasons other than establishing defendant's identity,

including to demonstrate defendant had "a common plan or scheme" and his

intent.

      Although not expressly addressed by the trial court, we agree the

severance motion was properly denied because the evidence established the two

incidents occurred in very close temporal and physical proximity and revealed

"a common scheme or plan [that] embodies the commission of two or more

crimes so related that proof of one tends to establish the other." State v.

Lumumba, 

253 N.J. Super. 375

, 387 (App. Div. 1992); see also State v.

Hardison, 

204 N.J. Super. 1

, 10 (App. Div. 1983) (upholding joinder of two

separate robberies on the same night because "the record include[d] evidence of


                                       19                                    A-1688-19
a 'common scheme or plan' rather than separate and unrelated events"). Indeed,

although defendant testified he did not intend to rob either the store owner or

station attendant, he admitted his actions in both instances were part of a

common scheme or plan to obtain money.

      Defendant argues the trial court erred by finding the evidence concerning

the separate robberies was material to the issue of defendant's identity. He

claims his identity was not a material issue at trial because he admitted to the

police he was present, he was apprehended after being locked in the booth at the

gas station, and he did not dispute he was present at the convenience store.

      We agree with the trial court that the State had the burden of proving

beyond a reasonable doubt defendant was the individual who committed the

separate robberies charged in the indictment. See State v. Henderson, 433 N.J.

Super. 94, 108 (App. Div. 2013) (noting "the State's burden of proving at trial

the identity of the accused as the person who committed the charged offense

beyond a reasonable doubt"); see also Model Jury Charges (Criminal), "Robbery

in the First Degree (N.J.S.A. 2C:15-1)" (rev. Sept. 10, 2012) (explaining in part

the State has the burden of proving beyond a reasonable doubt the defendant

committed each of the elements of the crime of first-degree robbery to convict

the defendant of the offense). Thus, defendant's identity was a material issue at


                                      20                                   A-1688-19
trial and proof of defendant's identity was essential to the State's satisfaction of

its burden of proving one of the essential elements of the crimes charged beyond

a reasonable doubt.

      We reject defendant's claim proof of his identity as the perpetrator of the

two crimes charged in the indictment was not a material issue because he did

not dispute he was present during the alleged robberies. Defendant's pretrial

motion for severance was unaccompanied by any concession he was properly

identified as the individual who allegedly committed the two charged robberies.

He properly left the State to its burden of proving his identity as the perpetrator

of each offense beyond a reasonable doubt. It was only after the State presented

its evidence at trial that he conceded during his testimony he was the individual

in the store who interacted with its owner and that he was later at the gas station.

Thus, at the time the severance motion was made and decided, defendant had

not conceded he was the individual who was involved in the incidents and, even

if he had, a jury is not bound to accept a defendant's concession as to any fact,

and the State at all times had the burden of proving defendant was the person

who committed the charged offenses.

      Moreover, the evidence concerning defendant's participation in each

separate offense was admissible to establish his identity in the other offense.


                                        21                                    A-1688-19
See 

Sterling, 215 N.J. at 73

. Defendant wore the same clothing during each

incident, and the evidence otherwise showed they occurred minutes apart and in

close physical proximity to the other. Our Supreme Court has observed that

"[o]ther-crimes evidence may . . . be admitted on the issue of identity when a

particular weapon or disguise used in one crime connects a defendant to another

offense."

Id. at 93.

Here, defendant wore identical clothing, including the

distinctive white towel he used to cover all of his face except his eyes, during

both incidents. In defendant's verified petition, he acknowledged his clothing

established his identity as the individual involved in both of the alleged crimes;

defendant stated the "clothes he was wearing" "tie[d him] to both alleged

robberies." In other words, in his sworn statement supporting his PCR petition,

defendant admits the clothes he wore during each alleged robbery established

his identity as the perpetrator of the other. 5


5
   We reject defendant's argument the similarity in his clothing was inadequate to
establish his identity because the evidence did not satisfy the standard for
demonstrating identity based on the commission of "signature crimes." There is a
stringent standard for admitting other-crimes evidence to prove identity where "the
State attempts to link a particular defendant to a crime on the basis of modus
operandi, or a signature way of committing the crime." 

Sterling, 215 N.J. at 93

; see
also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 14
on N.J.R.E. 404(b) (2020). A more stringent standard is required "[b]ecause of the
great hazard of prejudice" when other-crimes evidence is presented, "particularly
where the venture is to prove identity." State v. Reldan, 

185 N.J. Super. 494

, 502


                                         22                                  A-1688-19
      Additionally, evidence concerning both offenses was admissible to

establish defendant's common plan and scheme, and, more importantly, his

intent. As noted by the trial court, defendant offered a statement to the police,

which he reprised at trial, that he wore the towel to keep warm and he did not

intend to commit any robberies, but instead innocently requested money to

obtain train fare to return home. The evidence of defendant's actions, first at the

store and then the gas station, demonstrate a contrary scheme, plan, and intent.

The evidence showed that in both instances defendant entered structures, where

he was protected from the elements, wearing a disguise—a white towel wrapped

around his face to obscure his identity—with at least one hand obscured in a

pocket, and demanded—not requested—money that was not his. As the motion

court found, those actions established a common and ongoing scheme reflecting

an intent to rob the victims. The evidence was material because it went to the

core of the issues presented at trial—defendant's intent—and it contradicted




(App. Div. 1982). Defendant's reliance on the standard for admissibility of
signature-crimes evidence is misplaced. The State did not argue, and the trial court
did not find, the evidence concerning defendant's clothing constituted evidence of
signature crimes, and there is no claim there was a signature modus operandi
supporting defendant's identity as the perpetrator of the two alleged robberies. Here,
the mere fact that defendant was seen wearing identical clothing—including the
distinctive white towel mask—at two nearby locations minutes apart is sufficient to
demonstrate his identity as the individual at each alleged robbery.

                                        23                                     A-1688-19
defendant's self-serving statement to the police and his self-serving testimony at

trial.

         We are convinced that, contrary to defendant's claim, the evidence

concerning each separate incident was admissible to address material issues

relevant to establishing defendant's guilt on the separate robberies charged in

the indictment.       In addition, he suffered no undue prejudice from the

introduction of the evidence at the joint trial on the separately charged robberies.

Since the evidence as to each incident would have been admissible in separate

trials on each of the charged offenses, the charges were properly consolidated

and defendant did "not suffer any more prejudice in a joint trial than he would

in separate trials.'" 

Chenique-Puey, 145 N.J. at 341

(quoting State v. Coruzzi,

189 N.J. Super. 273

, 299 (App. Div. 1983)).

         Defendant's ineffective assistance of counsel claim against his appellate

counsel fails because defendant did not sustain his burden of establishing

counsel failed to make a meritorious argument on his direct appeal. See 

O’Neal,

190 N.J. at 619

. The claim further fails because defendant did not present

evidence satisfying his burden under Strickland's second prong.            That is,

defendant makes no showing that but for his appellate counsel's alleged error,




                                        24                                    A-1688-19
there is a reasonable probability the result of his appeal would have been

different. See 

Strickland, 466 U.S. at 694

.

                                        C.

      We find no merit to defendant's argument the court erred by rejecting his

PCR claims without an evidentiary hearing. A defendant is entitled to an

evidentiary hearing only when he or she "has presented a prima facie [claim] in

support of [PCR]." State v. Marshall, 

148 N.J. 89

, 158 (1997) (quoting 

Preciose,

129 N.J. at 462

). "To establish a prima facie claim of ineffective assistance of

counsel, a defendant must demonstrate the reasonable likelihood of succeeding

under the" Strickland standard.      

Preciose, 129 N.J. at 463

.      As we have

explained, defendant failed to establish a prima facie case of ineffective

assistance of his trial and appellate counsel. The court therefore correctly denied

his request for an evidentiary hearing.

Id. at 462-63.

      To the extent we have not directly addressed any arguments made on

defendant's behalf, we find the arguments are without sufficient merit to warrant

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

      Affirmed.




                                       25                                    A-1688-19

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