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State v. Dunbar

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN DUNBAR, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-05-0472.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2009

Before Judges Stern and Ashrafi.

Defendant appeals from the denial of his petition for post-conviction relief ("PCR"). He contends that he is entitled to "an evidentiary hearing because a prima facie case of ineffectiveness of counsel was established due to trial counsel's failure to investigate an exculpatory witness." He had entered a guilty plea to an amended count of aggravated manslaughter in exchange for a maximum twenty-year sentence with No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, to apply, and dismissal of the balance of the indictment. He received a sentence of seventeen years in the custody of the Commissioner of the Department of Corrections with eighty-five percent thereof to be served before parole eligibility.

At the time of plea, the judge reviewed the negotiated sentence recommendation, including the mandatory minimum and mandatory five-year period of parole supervision under NERA, with defendant. The defendant admitted shooting Chris Carter with a handgun under circumstances which "created a probability that his death would result." Pursuant to the negotiated disposition, the indictment which included charges of murdering Carter, the attempted murder of Darryl Quashon Jackson, aggravated assault and weapons offenses, were dismissed. We affirmed the seventeen-year sentence with NERA on defendant's direct appeal.

In his subsequent PCR petition, defendant essentially challenged his sentence only. However, in a certification prepared with the assistance of counsel, defendant asserted that his trial counsel failed to "investigate" and "secure favorable testimony" from three potential witnesses, including Anthony Pilgrim "who would have said he gave a false statement to the police." Only Pilgrim gave a statement for use on the PCR. It recanted Pilgrim's original statement to police, and stated that Pilgrim "didn't see Kevin Dunbar all that day" on the date of the shooting "or the day before either." Moreover, according to Pilgrim's recanting statement, it was "very dark" at the time of the shooting and he "couldn't see the face of the person who fired the shots."

Pilgrim's pretrial statement had identified defendant as responsible for the shootings of Carter and Jackson in a dispute concerning drug sales and proceeds.

Usually the credibility of a recantation must be tested at an evidentiary hearing. However, the PCR judge, who took the plea, concluded that such a hearing was not required in this case. This is because Pilgrim's original statement was so detailed it had to have been credible and would have been admissible substantively under State v. Gross, 121 N.J. 1 (1990), if Pilgrim testified and the recantation testimony was introduced at trial. Moreover, Pilgrim's original pretrial statement was consistent with those of other witnesses who received and disposed of the handgun for defendant. The PCR judge concluded that consideration of Pilgrim's credibility required consideration of "the other evidence in the case which coincides with what was in Anthony Pilgrim's original statement," and that the new statement "would have really dis-served the defense rather than helped the defense" because the original statement, which was consistent with others, would have been admissible, thereby "hurting the defense and being helpful to the State." The judge therefore concluded that "even if ... the defense had the benefit of this latest five line statement of Anthony Pilgrim" for purposes of a trial, "it would not have made any difference at all with regard to ... the strength of the State's case." Thus, the judge could determine without a hearing that, considering the strength of the State's case, had Pilgrim been investigated and called as a witness and testified consistent with his recantation, it wouldn't have made a difference for purposes of the second prong of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984).

Here, Pilgrim was clearly known at the time of plea, as was his original statement, and we agree with the PCR judge that had Pilgrim testified at a trial, it is unlikely it would have helped defendant. Moreover, one of the other two potential witnesses named in the PCR petition, Jo Jo Boisseau, also gave a pretrial statement, but no exculpatory statement from him was presented for the PCR. Furthermore, nothing was presented to impeach the pretrial statements of Angel Leary that defendant gave her the weapon she gave to Lyndell McCoy, and of McCoy who disposed of what turned out to be the gun which killed Carter.

We affirm the order denying PCR substantially for the reasons stated by Judge Ronald G. Marmo in his oral opinion of December 19, 2007. We add only that we cannot conclude defendant accepted the negotiated disposition offered only because of the ineffective assistance of trial counsel. See Hill v. Lockhard, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985).

Affirmed.

20090423

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