STATE OF NEW JERSEY VS. PETER KLAH

We previously related the facts in detail in our affirmance

of defendant's conviction on direct appeal. State v. Klah, No.

A-1271-10 (App. Div. June 28, 2012). We briefly summarize them

again here. On October 24, 2006, Trenton Police Detective

Matthew Przemieniecki and another officer were driving an

unmarked police patrol car near the intersection of Monmouth and

Clinton Streets in Trenton. Przemieniecki heard a gunshot and

saw the muzzle flash of a gun being fired by defendant. After

hearing the gunshot, he put his car in reverse to turn down

Monmouth Street. He had an unobstructed view as he watched

defendant fire a handgun at a man running down the sidewalk, who

was later identified as the victim, C.B.1

Przemieniecki observed defendant enter a silver Buick. He

radioed other police, who came to the scene. Przemieniecki and

other officers removed the driver and defendant from the

vehicle.

After obtaining a search warrant, officers removed a

handgun and marijuana from the car. Four shell casings were

recovered from the sidewalk in the area where defendant had been

standing. Another officer heard the radio call about the shots

fired and headed to the area and observed a female screaming and

pointing to a black male, later identified as C.B., lying dead



The handgun retrieved from the vehicle, the spent shell

casings, and the bullet recovered from the victim's body were

forwarded to the New Jersey State Police Laboratory. Detective

James Ryan, a firearms expert employed as a supervisor in the

New Jersey State Police ballistics unit, opined that the bullet

and shell casings recovered from the crime scene were fired from

the weapon found in the vehicle.

Following an unsuccessful motion to suppress and a jury

trial, defendant was convicted of first-degree murder, N.J.S.A.

2C:11-3a(2); second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4a; third-degree theft by

receiving stolen property, N.J.S.A. 2C:20-7; and third-degree

possession of CDS with intent to distribute on or near school

property, N.J.S.A. 2C:35-7.

After appropriate mergers, the trial judge sentenced

defendant to an aggregate minimum term of seventy-five years

imprisonment, subject to parole ineligibility under the No Early

Release Act (NERA) N.J.S.A. 2C:43-7.2. Defendant appealed his

conviction which we affirmed on June 28, 2012. Klah, supra. On

January 16, 2013, the Supreme Court denied defendant's petition

for certification. State v. Klah, 213 N.J. 567 (2013).

Defendant subsequently filed a petition for PCR on February 2,

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2013, which was denied without an evidentiary hearing in an

order dated June 30, 2014. This appeal followed.

Defendant raises the following points on appeal:

POINT I – DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING WITH REGARD TO HIS CONTENTION THAT TRIAL COUNSEL SHOULD HAVE CALLED TWO WITNESSES CONCERNING DEFENDANT AND VICTIM'S FRIENDLY RELATIONSHIP AT THE TIME OF THE MURDER.

POINT II – DEFENDANT WAS ENTITLED TO POSTCONVICTION RELIEF WHERE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO RETAIN A BALLISTICS EXPERT.

POINT III – DEFENDANT WAS ENTITLED TO POSTCONVICTION RELIEF DUE TO TRIAL COUNSEL'S FAILURE TO MOVE TO SEVER UNRELATED COUNTS IN THE INDICTMENT OR OBJECT TO N.J.R.E. 404(B) EVIDENCE, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO RAISE THIS ISSUE ON APPEAL.

POINT IV – DEFENDANT WAS ENTITLED TO POSTCONVICTION RELIEF DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT IN THE STATE'S OPENING AND CLOSING ARGUMENTS, AND APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON DIRECT APPEAL.

We affirm substantially for the reasons expressed in Judge

Mark Fleming's cogent, thoughtful opinion. We add the following

comments and observations.

Because defendant asserts that the trial court erred in

applying the law, we review the record de novo. State v.

O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). To

establish a prima facie claim of ineffective assistance of

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counsel, a defendant must demonstrate the reasonable likelihood

of succeeding on the merits under the test set forth in

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,

2068, 80 L. Ed. 2d 674, 697-98 (1984), which our Supreme Court

adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant

must first show that his counsel's performance fell below an

objective standard of reasonableness. The standard of

"reasonable competence" required of trial counsel, Fritz, supra,

105 N.J. at 60, "does not require the best of attorneys." State

v. Davis, 116 N.J. 341, 351 (1989). Defendant must also show

actual prejudice, that is, "a 'reasonable probability' that

counsel's derelictions affected the outcome." State v.

Rountree, 388 N.J. Super. 190, 106 (App. Div. 2006), certif.

denied, 192 N.J. 66 (2007) (quoting Fritz, supra, 105 N.J. at

58). "The error committed must be so serious as to undermine

[the court's] confidence in the jury's verdict." State v.

Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied,

169 N.J. 609 (2001).

If a petitioner for PCR demonstrates a prima facie case for

ineffective assistance of counsel, the trial court must hold an

evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63

(1992). To establish such a prima facie case, however, "a

petitioner must do more than make bald assertions that he was

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denied the effective assistance of counsel." State v. Cummings,

321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.

199 (1999). Rather, the petitioner must allege facts "supported

by affidavits or certifications based upon the personal

knowledge of the affiant or the person making the

certification." Ibid. (citing R. 1:6-6).

We agree that defendant failed to establish a prima facie

case of ineffective assistance of counsel. Judge Fleming

concluded that defendant's trial counsel made a strategic

decision not to call the co-defendant and the victim's

girlfriend at trial, which did not constitute deficient

representation. We ascribe substantial deference to defense

attorneys in choosing which witnesses to call at trial. See

State v. Martini, 160 N.J. 248, 266 (1999) (explaining that

courts do not question counsels' reasonable professional

judgments). Accordingly, defendant's claim of ineffective

assistance in this regard does not overcome the first prong of

the Strickland/Fritz test because defendant has failed to

demonstrate that his counsel was ineffective in this regard.

Moreover, even if it were determined to be deficient

performance, defendant has not demonstrated that he was

prejudiced in the outcome of the proceedings by the omission of

the testimony of these witnesses.

A-5844-13T1 7

Defendant also cites his trial counsel's failure to retain

a ballistics expert as ineffective assistance. The PCR judge

permitted defendant to supplement the record with the report and

findings of a ballistics expert. The expert corroborated

several aspects of the State's analysis, and only questioned

whether defendant could have been standing in the street where

one of the officers identified he was standing. The PCR judge

was nevertheless correct in rejecting defendant's argument. The

report submitted to the PCR court confirmed the accuracy of the

State's ballistics analysis, and that the testimony would have

confirmed that the gun found in the vehicle was the murder

weapon.

Defendant asserts that trial counsel should, however, have

presented evidence contrary to the State's evidence.

Defendant's reliance on State v. Bryant, 237 N.J. Super. 105,

106-107 (App. Div. 1998), for this proposition is inapposite.

Bryant was a juvenile waiver case in which defense counsel was

deemed ineffective for failing to present evidence at the waiver

hearing with respect to the juvenile's potential for

rehabilitation, a vital component of such a hearing. Id. at

107. In this case, there was no clear obligation for trial

counsel to call an expert for the purpose of disputing the

detective's testimony with regard to the shooter, especially

A-5844-13T1 8

when such an expert may have reinforced the state's theory that

the gun found at defendant's feet was the murder weapon.

Defendant also asserts that both his trial and appellate

counsel were ineffective because they failed to argue that the

CDS counts should have been severed from the indictment for

trial purposes, and because they failed to raise several issues

under N.J.R.E. 404(b) at trial and on appeal; namely, that the

failure to sever counts allows prejudicial evidence otherwise

prohibited by N.J.R.E. 404(b). We agree with Judge Fleming's

conclusion that joinder of the criminal charges was appropriate

because each offense was criminal; the offenses arose from a

similar episode; the prosecuting officer knew of the offenses at

the time the trial commenced; and the offenses occurred within

the jurisdiction of the same court. See State v. Williams, 172

N.J. at 361, 368 (2002) (explaining the appropriate test to

determine whether joinder or severance is appropriate) (citing

State v. Yoskowitz, 116 N.J. 679, 701 (1989)). Defendant does

not successfully establish that a motion to sever the counts

would have been successful, and defendant's motion for an

evidentiary hearing in that regard was properly denied. State

v. O'Neal, 190 N.J. 601, 618-19 (2007).

Defendant also contends that his counsel was ineffective

for failing to object to statements that the State made during

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opening and closing arguments. The record does not demonstrate

conduct "so egregious as to deprive defendant of a fair trial."

State v. Wakefield, 190 N.J. 397, 437 (2007) (citations

omitted).

Finally, defendant asserts that the cumulative effect

of all of the above listed errors deprived him of a fair trial.

Because of our conclusions above, we conclude here that this

argument lacks sufficient merit to warrant discussion in a

written opinion. Affirmed.