STATE OF NEW JERSEY VS. RONALD B. GREENE (12-02-0302, BERGEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4522-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RONALD B. GREENE, a/k/a/
RONALD B. GREEN,
Defendant-Appellant.
__________________________
Submitted February 10, 2021 – Decided April 21, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 12-02-0302.
Joseph E. Krakora, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, and on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Ian C. Kennedy, Assistant Prosecutor, of
counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).
PER CURIAM
Defendant Ronald B. Greene appeals the Law Division order denying him
post-conviction relief (PCR) without an evidentiary hearing. We affirm.
To resolve the issues raised on appeal, we need not detail the trial evidence
and procedural history, which are detailed in our unpublished decision State v.
Greene, No. A-4674-13 (App. Div. Nov. 9, 2016), certif. denied, 229 N.J. 13(2017), affirming defendant's convictions for second-degree conspiracy to
commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1; third-degree distribution of
a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and -5(b)(5);
second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2, N.J.S.A. 35-
5(a)(1), and N.J.S.A. 2C:35-5(b)(1); third-degree possession with intent to
distribute an imitation drug, N.J.S.A. 2C:35-11; first-degree armed robbery,
N.J.S.A. 2C:15-1; two counts of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of
prohibited devices (defaced firearm), N.J.S.A. 2C:39-3(d); two counts of
second-degree possession of a firearm while committing a drug offense,
N.J.S.A. 2C:39-4.1(a); third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b)(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and second-
degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). We did,
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however, remand for the trial court to explain its reasons for imposing
consecutive sentences resulting in an aggregate thirty-five-year prison term with
twenty-one years and three months without parole. Greene, slip op. at 7, 20.
Instead, we focus on contentions before us.
Defendant argues the PCR judge erred in barring claims because he found
they were previously adjudicated on direct appeal or could have been raised on
direct appeal. Rule 3:22-5 provides that "[a] prior adjudication upon the merits
of any ground for relief is conclusive whether made in the proceedings resulting
in the conviction or in any post-conviction proceeding . . . or in any appeal taken
from such proceedings." Defendant asserts his claims fall under the exception
of Rule 3:22-4(a), which provides:
(1) that the ground for relief not previously asserted
could not reasonably have been raised in any prior
proceeding; or
(2) that enforcement of the bar to preclude claims,
including one for ineffective assistance of counsel,
would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule
of constitutional law under either the Constitution of
the United States or the State of New Jersey.
He maintains his claims focus on the inattention of counsel and were not
previously decided and could not have been raised on appeal, citing State v.
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Damon, 286 N.J. Super. 492, 496 (App. Div. 1996). We disagree and affirm
substantially for the reasons set forth in Judge Robert M. Vinci's written
decision.
Before us, defendant renews his contention that trial counsel rendered
ineffective assistance of counsel in failing to file a motion to suppress weapons
purportedly found at the scene because the State did not establish a chain of
custody. Judge Vinci decided that defendant should have but did not argue on
direct appeal that the chain of custody of the weapons was not established.
Nevertheless, the judge rejected defendant's argument on its merits
because there was uncontroverted testimony placing the weapons at the scene.
The judge reasoned there was "photograph[ic] [evidence] of the weapons at the
scene, testimony of the [police] officer who took the photographs," and
testimony by another police officer identifying "the handgun that defendant
pointed at his head. . . ." He further explained there was testimony by an
additional police officer "regarding his observation of defendant placing that
handgun on the ground in the area of the parked vehicles." Additionally, officers
testified that the weapons were collected from the "scene after they were
photographed." Because there "was more than sufficient [evidence] to establish
the admissibility of the weapons," the judge relied upon the principle espoused
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in State v. Worlock, 117 NJ. 596, 625 (1990), that counsel cannot be ineffective
for filing a motion that would have been unsuccessful.
Defendant also contends that both trial and appellate counsel failed to
raise crucial issues on his behalf, causing him to file two pro se motions, and
pro se supplemental trial and appellate briefs. Defendant's motions sought to
dismiss the indictment based upon the prosecutorial misconduct and insufficient
evidence, and to obtain an acquittal notwithstanding the verdict on the robbery
and drug charges. The motions were denied.
Defendant's pro se brief point headings argued: (1) "[p]rosecutorial
misconduct during grand jury proceedings"; (2) "[t]he State failed to present
evidence from which the jury could draw inference to conclude beyond a
reasonable doubt that defendant conspired to commit robbery and possessed
CDS [with] intent to distribute"(second alteration in original); (3) "the trial court
failed to instruct the jury on an essential element of [first-degree robbery]"; (4)
"[t]he State failed to present sufficient evidence from which the jury could
conclude first[-]degree [robbery] beyond a reasonable doubt"; and (5) "[t]here
was insufficient evidence of the existence [of] heroin . . . to sustain a conviction"
on any of the CDS charges. Greene, slip op. at 8-9. We decided that the trial
court properly denied defendant's motion for judgment of acquittal because
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"there was ample evidence whereby a reasonable jury could find defendant
guilty of conspiracy to distribute heroin." Id. at 17. As for defendant's other
appellate pro se arguments, this court applied Rule 2:11-3(e)(2), holding they
"lack[ed] sufficient merit to warrant discussion in a written opinion." Id., at 20.
Judge Vinci found defendant's contentions were not viable for PCR
merely because he alleged that counsel was deficient and that they could not
have been raised before the trial and appellate courts. The judge held "defendant
cannot establish that [trial and appellate counsels'] . . . failure to [raise issues]
changed the result of, or undermined confidence in, the outcome of the
proceedings because the arguments were, in fact, presented to those courts."
Defendant contends trial counsel failed to properly object to hearsay
testimony by several police officers and failed to obtain supplemental police
reports regarding the handguns and defendant's purported actions. The judge
determined the contentions were nothing more than bald allegations premised
on questions concerning trial strategy. Defendant provided no proof "that . . .
supplemental reports may have contained discrepancies or that additional or
different cross-examination of the officers may have been fruitful." The judge
also found there was no requirement that the State "provide written summaries
of the officers' anticipated testimony prior to trial."
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In denying PCR, the judge applied the well-settled two-prong test set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1984), adopted by our Supreme
Court in State v. Fritz, 105 N.J. 42, 58 (1987), that a defendant must first show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed . . . by the Sixth Amendment," Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687); and second, he must prove that he suffered
prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687,
691-92. The judge found that under State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999), some of defendant's contentions were nothing more than
bald assertions lacking factual support, and thereby failing to establish a prima
facie case of ineffective assistance of counsel.
Our review of the record fully substantiates Judge Vinci's ruling that
defendant failed to establish a prima facie case of ineffective assistance of
counsel. Hence, we cannot find he abused his discretion in denying defendant's
request for an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462
(1992); State v. Porter, 216 N.J. 343, 354 (2013) (holding an evidentiary hearing
need only be conducted if there are disputed issues as to material facts regarding
entitlement to PCR that cannot be resolved based on the existing record).
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To the extent we have not specifically addressed defendant's arguments,
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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