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State v. Lin

April 6, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHO LEE LIN DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY ZHU, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHAO LIN FENG, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
XIN DAN LIN, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SIMON LAU, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
YUN LIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 94-06-0644.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2010

Before Judges Rodríguez, Yannotti and Chambers.

Defendants Cho Lee Lin, Jeffrey Zhu, Chao Lin Feng, Xin Dan Lin, Simon Lau, and Yun Lin appeal from the denial of their respective petitions for post-conviction relief (PCR). We affirm.

Defendants were jointly tried and convicted of four counts of purposeful and knowing murder, two counts of attempted murder, five counts of felony murder, two counts of kidnapping, one count of burglary, one count of attempted arson, and various weapons offenses. Following the entry of the verdicts, defendants moved for a new trial. Judge William C. Meehan denied the motions and imposed sentences. With the exception of defendant Zhu, who received an aggregate sentence of four life terms with 120 years of parole ineligibility, each defendant received an aggregate sentence of four life terms plus forty years, with 140 years of parole ineligibility. We affirmed.

Nos. A-4025-95T4, A-4196-95T4, A-5041-95T4, A-5065-95T4, A-5073- 95T4, and A-5077-95T4 (App. Div. April 5, 1999), aff'd, State v. Zhu, 165 N.J. 544 (2000).

These were the salient proofs at trial. Defendants were members of Fuk Ching, a Chinese gang operating in the New York area. Among other activities, the gang smuggled people from China into the United States. The Fuk Ching would hold the smuggled aliens in a "safe house" until a sum of money between $20,000 and $30,000 had been paid.

At some point, there was a falling out between Fuk Ching's leader, Ah Kay, and another gang member, co-defendant Xin Dan Lin. As a result, Ah Kay ordered the killing of Xin Dan Lin. Two gang members were killed in New York, but Xin Dan Lin managed to escape when the gun held to his head jammed. Ah Kay decided to hide out. He left his brother Ah Wong in charge of the gang and a safe house on Somerset Road in Teaneck. Ah Wong lived in the house and was responsible for handling all arrangements there. At the time of the murders, there were four gang members living in the house along with one of the smuggled aliens. It was Ah Wong and these four gang members who became defendants' victims on the evening of May 24, 1993. The alien, Lin Ling Chang, was the only survivor. He identified defendants Xin Dan Lin, Yun Lin, Chao Lin Feng, and Cho Lee Lin as among those who committed the murders and who attempted to murder him.

According to Lin Ling Chang, earlier in the day, three of the four resident gang members had left the house, leaving one gang member, Liang Qun Guo (also a brother of Ah Kay), with Lin Ling Chang. While Lin Ling Chang was in the kitchen, he heard the doorbell ring. Liang Qun Guo went to the door and moments later a number of people entered the kitchen. One of the defendants pointed a gun at Lin Ling Chang's head. Liang Qun Guo started to fight with the intruders. Gunshots were fired.

Both Lin Ling Chang and Liang Qun Guo were shot. They were dragged to the basement, tied, and duct taped.

On the evening of May 24, 1993, Ming Cheng, a member of Fuk Ching and Ah Wong's bodyguard, drove from New York to Teaneck with Ah Wong and two other gang members, Yu Ping Zhang and Guang Sheng Li. Upon their arrival, they found the house locked, and no one answered the doorbell. Yu Ping Zhang and Guang Sheng Li gained entrance to the house through a window in the back. Ming Cheng went to the front door. He was not aware of how Guang Sheng Li got inside the house.

After Ming Cheng and Ah Wong had returned to the front door, the door opened and Ming Cheng heard a gunshot. He pushed the door open and saw Xin Dan Lin with a gun and several other persons on the stairs inside. He warned Ah Wong and they both ran, but in opposite directions. Ming Cheng ran two or three blocks and hid in some bushes. He saw Ah Wong lying on the ground with three people standing over him and then heard some gunshots.

Alan Tam, one of the main witnesses against defendants, was a member of the Fuk Ching. He pled guilty in federal court to charges related to the killings and agreed to testify at this trial. Alan Tam testified that in early April 1993, he spent several days at an apartment in Brooklyn where Simon Lau, Chao Lin Feng, and Jeffrey Zhu attempted to recruit him to participate in the murder of Ah Wong. The motivation behind this plot was to gain control of the alien smuggling business and to strike back for the attempted killing of Xin Dan Lin. Alan Tam met with Ah Wong four days before the killing. He did not warn Ah Wong of the murder plot against him.

Tu Wei Chung was also a member of the Fuk Ching gang. Like Tam, he testified for the State pursuant to a plea agreement on federal charges. He corroborated Tam's testimony.

Rhonda Spencer lived in the neighborhood. She testified that shortly after 7:00 p.m., while sitting in front of her residence, she heard something that sounded like glass breaking. She also heard about four gun shots and ran down to find her younger brother who was playing on a nearby street. She saw a group of men running across a lawn. While this group of men was running, she saw another man, with a black stadium jacket, get into a blue van. The van then picked up the men who were running.

Teaneck Police Detective Kenneth Croonquist was the first police officer to arrive at the scene. Upon arrival, he approached the front door, peered in, and saw an Asian male apparently dead. A small weapon was partially under the victim's legs. Sergeant Croonquist saw knives and handguns scattered about the house. A second victim was found in the hallway, lying on his side with no pulse. Two more victims were found on the floor of the basement. Each of these victims were handcuffed and had duct tape over their mouths. One of them, Lin Ling Chang, survived. Among the assassins, Ah Wong, Guang Sheng Li, Yu Ping Zhang and Liang Qun Guo died. Ming Cheng escaped.

Teaneck Police Officer Frank Cox was on patrol in a marked police car with Officer Kenneth Porrino. Upon hearing a police broadcast of a multiple shooting in Teaneck, they drove to the toll plaza at the George Washington Bridge. At 7:33 p.m., they saw a blue van with Asian males, which fit the description provided in the SPEN emergency broadcast, approaching the toll plaza. They pulled up close behind the van, turning on the overhead lights and siren. Officer Kevin Mahon used his public announcement system to instruct the driver to throw the keys out of the window and to come out of the van. The driver was defendant Jeffrey Zhu.

PCR Petition of Cho Lee Lin Cho Lee Lin filed pro se a PCR petition. Michael G. Paul, Esq., represented Cho Lee Lin at the PCR hearing. Judge Meehan conducted a hearing and denied the petition.

Defendant Cho Lee Lin appeals contending:

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Failed To Adequately Investigate The Case, Resulting In An Incomplete Defense.

B. Trial Counsel Rendered Ineffective Assistance Of Counsel By Failing To Obtain And Present An Expert On Chinese Alien Smuggling And Chinese Gangs.

C. Trial Counsel Rendered Ineffective Assistance Of Counsel By Failing To Request That Defendant's Case Be Tried Separately From The Co-Defendants.

D. Trial Counsel Failed To Impeach The Testimony Of Chang Despite The Ready Availability Of Evidence Contrary To His Testimony.

E. Trial Counsel Rendered Ineffective Assistance Of Counsel By Failing To Exercise Peremptory Challenges Against Biased Jurors.

F. Trial Counsel Failed To Inform Defendant Of His Rights To Consular Access Under The Vienna Convention,*fn1

Thereby Rendering Ineffective Assistance Of Counsel.

G. Trial Counsel Rendered Ineffective Assistance By Failing To Have The Jury Sequestered.

H. Trial Counsel Failed To Object To The Trial Court's Destruction Of Jury Questionnaires.

I. Trial Counsel Failed To Move For A Change Of Venue.

J. The Conduct Of The Sheriff's Office Violated Defendant's Right To Effective Assistance Of Counsel, By Inducing And Directly Contributing To Many Of Trial Counsel's Errors.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS WAS VIOLATED BY THE STATE'S FAILURE TO COMPLY WITH THE VIENNA CONVENTION OF CONSULAR RELATIONS.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY ADMITTING INTO EVIDENCE HIGHLY PREJUDICIAL AUTOPSY PHOTOS.

THE PROSECUTOR'S FAILURE TO DISCLOSE THE NATURE AND DETAILS OF THE PLEA AGREEMENT BETWEEN THE FEDERAL GOVERNMENT AND ALAN TAM AND HENRY TU DENIED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE CONFRONTATION CLAUSE.

THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY UNDER BOTH THE STATE AND FEDERAL CONSTITUTION BY FAILING TO CONDUCT THE NECESSARY VOIR DIRE AND DISALLOWING DEFENDANT FROM HAVING MEANINGFUL INPUT INTO THE PROCESS.

A. Defendant Was Denied His Own Copy Of The Prospective Juror Questionnaires.

B. Defendant Was Denied The Opportunity To Question Prospective Jurors.

C. The Trial Court Improperly Limited The Scope Of Questioning During Voir Dire And Delegated Questioning To The Jury Commissioner.

D. The Trial Judge Failed To Properly Conduct An Adequate Voir Dire.

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO IMPANEL IMPARTIAL JURORS TO HEAR AND DECIDE THE CASE.

THE TRIAL COURT IMPROPERLY DESTROYED JUROR QUESTIONNAIRES, CONTRARY TO N.J.S.A. 2B:20-12, THEREBY DEPRIVING DEFENDANT OF HIS ABILITY ...


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