STATE OF NEW JERSEY VS. NORMAN T. GRAY (12-06-0383, CAPE MAY COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1447-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NORMAN T. GRAY, a/k/a
NORMAN FUMAN, and
NORMAN GARY,
Defendant-Appellant.
________________________
Submitted April 27, 2020 – Decided June 2, 2020
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 12-06-
0383.
Joseph E. Krakora, Public Defender, attorney for
appellant (Louis H. Miron, Designated Counsel, on the
brief).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen A. Pickering, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Norman T. Gray appeals the trial court's denial of his petition
for post-conviction relief ("PCR") without an evidentiary hearing. We affirm.
The matter arises out of defendant’s plea agreement with the State. He and
other codefendants were charged in a multicount indictment arising out of the
shooting death of Khalil Wallace. Among other things, defendant was charged
with first-degree murder, first-degree kidnapping, and first-degree conspiracy.
The State’s evidence showed that defendant, along with codefendants
Andre Gross and Boris Curwen, traveled together in a van to confront Wallace,
who apparently owed Gross money. According to Curwen, who entered into a
plea agreement with the State as a cooperating witness, Gross told defendant
and Curwen to “pop” Wallace if the encounter went amiss.
The three men picked up Wallace, and he got into the back seat of the van
on the passenger side. Defendant was in the back seat on the driver’s side.
Defendant was armed, as were Curwen and Gross. Wallace also had a gun, a
nine-millimeter caliber pistol.
After the van traveled a distance, Gross stopped it. An altercation arose
and shots were fired. According to Curwen, he saw defendant shoot Wallace.
A-1447-18T1
2
Wallace died at the scene, and defendant and the others then attempted to
dispose of his body.
A bullet was lodged in defendant’s arm. His theory is that the bullet was
from a shot fired by Wallace. He claims he had justifiably fired back at Wallace
in self-defense. The ballistics proofs revealed a nine millimeter caliber bullet
found in the back seat cushion of the van, near where defendant had been sitting.
The other defendants had different caliber guns.
Before trial Gross moved to dismiss the indictment, arguing the State
should have charged the grand jurors with self-defense. Defendant’s trial
attorney joined in that dismissal motion and likewise argued the self-defense
theory to the court. The trial court denied the motion because the evidence
showed that Wallace was not the aggressor, although defense counsel could
attempt to gather more evidence of self-defense to present at trial.
The State extended to defendant a plea offer in which it would recommend
to the court a sentence of twenty-five years, subject to the parole ineligibility
terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2(a). Defendant
rejected that particular plea offer.
Thereafter, on the day of jury selection, defendant’s lawyer negotiated a
much more favorable deal with the State: a plea to a reduced charge of
A-1447-18T1
3
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), carrying a recommended
twelve-year custodial term subject to a NERA parole disqualifier, plus a
consecutive three years for third-degree failure to dispose of human remains,
N.J.S.A. 2C:22-1(a).
Defendant accepted this revised plea agreement. At the plea colloquy, he
admitted to the court deliberately shooting Wallace, and made no mention of
self-defense.
At sentencing, defendant’s attorney renewed his argument that there are
indicia that Wallace may have shot first and been the aggressor. After hearing
that argument, the court imposed a sentence in accordance with the plea
agreement.
Defendant appealed his sentence as excessive. We affirmed the sentence
in a February 9, 2016 order. We remanded only to have the judgment of
conviction clarify that the third-degree offense was not subject to NERA.
In his PCR petition, defendant contended his trial attorney was ineffective
in: (1) not more aggressively pursuing a self-defense argument and (2) not
arguing mitigating factors at sentencing that he claims could have made the
third-degree sentence concurrent rather than consecutive.
A-1447-18T1
4
The PCR judge, Michael J. Donohue, issued a written opinion on August
9, 2018 denying the petition. The judge found that defendant had not presented
a prima facie claim of trial counsel’s ineffectiveness, and that there was no need
for an evidentiary hearing.
On appeal, defendant continues to press his two claims of ineffectiveness,
and contends that an evidentiary hearing is required. His brief presents those
points in this fashion:
POINT ONE
THE INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL DEPRIVED DEFENDANT OF A
FAIR OPPORTUNITY TO DEFEND AGAINST
THE CHARGES IN THE INDICTMENT AND
THUS, DEFENDANT'S PLEA SHOULD BE
VACATED OR, IN THE ALTERNATIVE, THE
TRIAL COURT SHOULD CONDUCT AN
EVIDENTIARY HEARING TO DETERMINE
THE BASIS FOR COUNSEL'S FAILING TO
PURSUE A SELF-DEFENSE CLAIM AND TO
PRESENT EVIDENCE OF MITIGATING
FACTORS AT SENTENCING.
POINT TWO
THE PCR COURT SHOULD HAVE
CONDUCTED AN EVIDENTIARY HEARING
TO ADDRESS ALL OF DEFENDANT'S
CLAIMS.
A-1447-18T1
5
We have carefully considered these arguments in light of the record and
the applicable law. Having done so, we affirm the PCR court's decision,
essentially for the sound reasons expressed in Judge Donohue's opinion. We
amplify his reasoning with a few short comments.
A person accused of crimes is guaranteed under the Sixth Amendment the
effective assistance of legal counsel in his defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish a deprivation of that right, a convicted
defendant must satisfy the two-part test enunciated in Strickland by
demonstrating that: (1) counsel's performance was deficient, and (2) the
deficient performance actually prejudiced the accused's defense. Id. at 687; see
also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test
in New Jersey).
In reviewing such claims, courts apply a strong presumption that defense
counsel "rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
"[C]omplaints 'merely of matters of trial strategy' will not serve to ground a
constitutional claim of inadequacy . . . ." Fritz, 105 N.J. at 42, 54 (1987)
(citations omitted); see also State v. Perry, 124 N.J. 128, 153 (1991); Hill v.
Lockhart, 474 U.S. 52, 59 (1985) (articulating the "reasonable probability" test
A-1447-18T1
6
where a defendant claims his counsel did not properly advise him before
entering a guilty plea).
To obtain an evidentiary hearing on a PCR application based upon
ineffective assistance claims, a defendant must make a prima facie showing of
deficient performance and actual prejudice. State v. Preciose, 129 N.J. 451, 462-
63 (1992). "When determining the propriety of conducting an evidentiary
hearing, the PCR court should view the facts in the light most favorable to the
defendant." State v. Jones, 219 N.J. 298, 311 (2014) (citing State v. Marshall,
148 N.J. 89, 158 (1997)); see also Preciose, 129 N.J. at 462-63.
Applying these well-settled standards here, we concur with the PCR judge
that defendant has not mounted a prima facie case that his former attorney was
ineffective. No evidentiary hearing was warranted.
The record substantiates that trial counsel did, in fact, make reasonable
attempts to pursue a self-defense claim, doing so in the joint motion to dismiss
the indictment, bringing it up again at a pretrial conference, and also at
sentencing.
Defendant argues, in retrospect, that his counsel should have sought a
court order to have the bullet lodged in his arm surgically removed and then see
if a ballistics test matched that bullet with Wallace’s nine millimeter gun. Even
A-1447-18T1
7
if, for the sake of discussion, such if such a hypothesized match were made, that
would not disprove the State’s theory of defendant's guilt, supported by
Curwen’s eyewitness testimony that defendant fired at Wallace first. Indeed,
Wallace could have fired back and hit defendant after he was already wounded.
Given the overall circumstances, it is highly speculative that defendant
would have succeeded in proving self-defense. There is no entitlement to PCR
based on such speculation. State v. Porter, 216 N.J. 343, 355 (2013) (quoting
Marshall, 148 N.J. at 158) ("[A] defendant is not entitled to an evidentiary
hearing if the 'allegations are too vague, conclusory, or speculative[.]'").
We also do not lose sight of the fact that defendant’s trial attorney
negotiated a much better deal for him, with an aggregate custodial term of fifteen
years, as compared to either the life sentence he faced at a jury trial, or the
State’s earlier plea offer to recommend a twenty-five-year sentence.
As the PCR judge also correctly found, there is no merit to defendant's
claim of ineffectiveness at sentencing. The record bears out that trial counsel
did argue that mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), (cooperation
with law enforcement) applied, noting that defendant offered to help the police
find the missing guns. Counsel also argued for concurrent rather than
consecutive sentences. Under State v. Yarbough, 100 N.J. 627 (1985), the body-
A-1447-18T1
8
disposal count is clearly a separate offense involving a discrete course of
conduct following the homicidal shooting. The consecutive sentences were
manifestly appropriate, and defense counsel could not have done more to
prevent their imposition.
All other arguments presented on appeal lack sufficient merit to warrant
discussion. R. 2:11-3(e)(2).
Affirmed.
A-1447-18T1
9