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State v. Jang


July 24, 2009


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-10-1871.

Per curiam.


Submitted May 4, 2009

Before Judges Lisa and Sapp-Peterson.

Defendant Jshik Jang appeals from the October 26, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

Following a trial in 1999, defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of first-degree felony-murder, N.J.S.A. 2C:11-3(a)(3); second-degree armed burglary, N.J.S.A. 2C:18-2; two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 2C:39-5(b); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(a). Defendant was sentenced to an aggregate term of life in prison, which included a forty-year period of parole ineligibility.

In a reported opinion, we affirmed defendant's conviction and sentence. State v. Jang, 359 N.J. Super. 85 (App. Div. 2003). The Supreme Court denied defendant's petition for certification. State v. Jang, 177 N.J. 492 (2003).

In June 2004, defendant filed a pro se PCR petition. Thereafter, in March 2007, defendant filed an addendum to the petition. Counsel was assigned to represent defendant and filed a brief on his behalf. The court conducted oral argument on the issues raised in the PCR petition on October 26, 2007, and on that same date, issued an oral opinion from the bench denying relief.

In denying the petition, the judge concluded that the issues raised in defendant's pro se petition had been raised and addressed on direct appeal and were therefore barred pursuant to Rule 3:22-5. As to the other issues raised, the judge found that there was "not one piece of evidence that indicates that the [jury foreperson] was unable to fulfill her duty as a juror." He concluded, "[t]he record is absolutely void as to any reason why this [issue] should be set down for an evidentiary hearing." As to the claim of ineffective assistance of counsel, the court acknowledged that defendant raised many claims of ineffectiveness but failed to put forth proofs to establish such ineffectiveness under the two-pronged test established in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).

On appeal, defendant asserts that he was entitled to a decision on the merits regarding each of the grounds for relief he advanced. Additionally, defendant claims that as to those issues the court did address, he decided them incorrectly.

We have considered each of these arguments in light of the applicable legal precedents and have concluded that they are unpersuasive. We therefore affirm and offer the following observations.

All of the relevant facts that gave rise to defendant's indictment and his conviction are set forth in our opinion affirming his conviction and sentence on direct appeal, which we recite herein:

In the late evening of January 4, 1995, defendant went to the home of Michael Suh with Jin Sig Choi and another individual identified only as "Mr. Lee" for the purpose of "get[ting] some money" from Suh, a successful businessman known to possess large sums of cash. When Suh pulled into his garage at approximately 11:30 p.m., he was confronted by a man wearing a ski mask and standing next to Suh's wife's car. In an effort to warn his wife, who with her mother and two children was in the home, Suh sounded his horn. Suh, through his rear-view mirror, then observed another masked individual walking towards the driver's window. This second masked man aimed a gun at Suh and pulled the trigger twice, but the gun did not fire. Suh shifted his car into reverse, striking the garage door, and proceeded back down the driveway; the gunman followed him. Mrs. Suh entered the garage from the house and was tackled by the other masked man, who then stabbed her eleven times, killing her.

Defendant was implicated in the crime as a result of a trace of the serial number on the recovered gun that revealed a chain of sales eventually ending with a sale of the weapon to Choi and defendant. When the police also determined that Choi owned a white and silver Chevrolet Blazer, the vehicle observed at the scene of the murder, they contacted the television show "America's Most Wanted" to conduct a profile of the case. The airing of that show resulted in a call from Tacoma, Washington advising of defendant's presence there, and eventually led to the surrender of defendant in Missoula, Montana.

Defendant minimized his involvement in the murder. He admitted that he bought the gun as well as the knife used to kill Mrs. Suh, and had purchased and placed in Choi's Chevrolet Blazer the ski masks used in the burglary, but he claimed that he did not know about the burglary and stayed in the back seat of the vehicle the entire time as he had a "bad back." He denied driving the Chevrolet Blazer, and asserted that Choi operated the vehicle, as defendant remained in the back seat. Notably, defendant had no reply to the investigators' perhaps rhetorical question: "If you had a bad back and you couldn't participate in this attempted robbery, why would Choi and Lee even think about bringing you there?"

Later in the morning of May 4, 1996, defendant was transported to the INS office in Helena, Montana to undergo processing for the federal immigration charge, and Special Agent Stavlo and Detective Bendul again met with defendant, informing him of his Miranda rights for a second time. Defendant subsequently made a formal statement while at the INS office, terminating the interview by stating: "I don't want to talk anymore.

Take me to jail." [Jang, supra, 359 N.J. Super. at 88-90.]

In defendant's pro se "addendum" petition, defendant raised seven points, one of which addressed his claim that police violated the Vienna Convention on Consular Relations (VCCR), another claim related to a juror on medication that may have affected her alertness during the trial, and four issues involving defendant's allegation that the sentence imposed is illegal. In his direct appeal, we specifically addressed the claimed violations of the VCCR, as well as defendant's contention that the imposition of consecutive sentences for murder and attempted murder was illegal. See Jang, supra, 359 N.J. Super. at 90-94, 97-98. Consequently, the PCR judge properly ruled that pursuant to Rule 3:22-5, defendant was precluded from revisiting these issues in his PCR petition.

Defendant did not, on direct appeal, raise the issue of the juror's attentiveness. This issue could have been raised at that time. Consequently, the issue was not properly before the PCR judge. R. 3:22-4; State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971). Nonetheless, the PCR judge addressed this contention on the merits. The judge concluded there was no evidence that the juror's taking medication, which the juror brought to the court's attention, had any impact upon the juror's ability to discharge that juror's duties as a juror. Those findings were supported by the record without the necessity of conducting an evidentiary hearing. State v. Preciose, 129 N.J. 451, 459-64 (1992).

With respect to defendant's claim of ineffective assistance of counsel, while the court did not extensively address each claimed area of ineffective performance by trial counsel, the court concluded that defendant failed to present the requisite proofs to support these contentions. We agree with the court's assessment of these claims.

As a general matter, to establish a deprivation of the right to the effective assistance of counsel, a person convicted of a crime must satisfy the two-part test enunciated in Strickland, supra, demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; 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, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471 (1963), cert. denied, 382 U.S. 964, 86 S.Ct. 449, 15 L.Ed. 2d 366 (1963)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Addressing defendant's contention under this standard, we first observe that defendant points to no authority that stands for the principle that he is entitled to be given a copy of the grand jury transcript by his retained counsel. Nor is there any evidence in the record that defendant asked for a copy of the grand jury transcript and trial counsel refused the request.

Next, we find no evidence of ineffective assistance of counsel resulting from trial counsel's failure to object to the alleged deficiencies in the jury instructions. The trial court properly instructed the jury that death occurring during the course of a robbery or an attempt to commit a robbery constitutes a felony and the jury was specifically instructed on the definition of an "attempt."

Likewise, the trial court properly instructed the jury on the required unanimity of their verdict. Assuming, as defendant contends, that some jurors could have concluded he was acting as a principal, while others may have found that he acted as an accomplice, there is no requirement that the jury be unanimous on defendant's status as a principal or as an accomplice, provided the jury unanimously agreed, as they obviously did here, that defendant committed the crime or shared the purpose to do so. State v. Brown, 138 N.J. 481, 520-22 (1994).



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