On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-11-3886.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Sabatino.
Defendant Jeffrey Petty appeals an order of the trial court dated August 8, 2008 denying his petition for post-conviction relief ("PCR"). For the reasons stated in this opinion, we affirm the dismissal of the PCR petition.
Following a jury trial in 1994 before Judge Betty Lester, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4, unlawful possession of a weapon, N.J.S.A. 2C:39-5B, and possession of a weapon for an improper purpose, N.J.S.A. 2C:39-4. At sentencing, Judge Lester granted the State's motion for an extended term of imprisonment and imposed an aggregate forty-year prison term, with twenty years of parole ineligibility.
According to the evidence adduced at trial, the homicide victim, Eric Plummer, was caught in the cross-fire of gunshots fired by two combatants in the lobby of a Newark housing project on August 17, 1993. The State's proofs indicated that on that date, Plummer entered the lobby of the building to buy drugs from defendant or his associates. During this time, defendant spotted Kevin Bishop, a drug dealer who had tried to rob him during the previous week. According to the State's witnesses, defendant went to his apartment in the building and retrieved an Uzi (or Uzi-like) weapon which he then used to fire multiple shots towards Bishop. Bishop returned fire, shooting into the lobby. As the victim tried to flee from the lobby, he was hit by a bullet and died.
On defendant's direct appeal in 1996, this court remanded the matter to have the trial judge further consider the admissibility of inculpatory prior inconsistent statements by Brian Wiggins, a witness called at trial by the State. Wiggins originally told the police that he had seen defendant fire the shots that hit the victim, but he later recanted those accusations at trial. We remanded for a continuation of the N.J.R.E. 104 hearing required by State v. Gross, 121 N.J. 18 (1990), to determine the reliability of Wiggins's prior statements. In our opinion, we indicated that if the State established the reliability of the statement that Wiggins originally gave to the police, then defendant's conviction would stand. However, if the trial court on remand determined that the statement Wiggins made to the police was not properly admitted, then defendant was entitled to a new trial. State v. Petty, No. A-6032-93 (App. Div. Mar. 25, 1996) (slip op. at 5).
On remand, the trial court confirmed that Wiggins's former statement was properly admitted. Defendant appealed that determination. In our second opinion, on October 11, 2000, we found that the trial judge had properly carried out our instructions, and affirmed the judge's ruling that the prior inconsistent statement by Wiggins was reliable and admissible. State v. Petty, No. A-2618-98 (App. Div. Oct. 11, 2000) (slip op. at 6), certif. denied, 167 N.J. 629 (2001).
Defendant then filed a PCR petition. In his petition, defendant mainly alleged that his original trial attorney and that attorney's partner who represented him at trial were constitutionally ineffective because they failed to pursue an alibi defense. He also contended that his counsel refused to speak with him before trial. He further asserted a generalized claim that the State violated its discovery obligations before trial, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed. 2d 215, 218 (1963).
During oral argument on July 29, 2005, defendant's PCR attorney persuaded Judge Lester to conduct an evidentiary hearing to determine if defendant's trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), for failing to prepare the case and for failing to present alibi witnesses. Over three intermittent days in 2005 and 2006, Judge Lester presided over that evidentiary hearing, taking testimony from several witnesses, including defendant, both of his former trial attorneys, his mother Eulla Petty, Francis Reilly, an investigator for the Public Defender's Office, and four alleged alibi witnesses: Yolanda Howard (defendant's girlfriend), Peggy Howard (Yolanda's mother), Marad Holder (Yolanda's brother), and Fuquan Mosley (a friend of defendant).
After considering these proofs at the PCR hearing, Judge Lester concluded in a written opinion dated August 8, 2008 that the Strickland standards were not violated and therefore dismissed the PCR petition.
Among other things, Judge Lester found incredible defendant's claim that his former trial counsel refused to pursue an alibi defense. The judge underscored several inconsistencies in the factual accounts of three of the alleged alibi witnesses. Given those inconsistencies, and the close relationships between defendant and the alibi witnesses, Judge Lester found that an experienced criminal defense attorney "could have fairly concluded that a weak alibi could cause more harm than good." The judge also rejected defendant's vague Brady claim.
In appealing the PCR denial, defendant notes, among other things, that Judge Lester's opinion is silent as to the fourth alibi witness, Fuquan Mosley, who claimed that he had been on the phone with defendant in Yolanda's apartment when the shots rang out in the lobby. Mosley claims that he had seen a man wearing a trenchcoat, with what appeared to be a gun bulging from one of its pockets, standing outside the housing unit. He testified that he warned defendant on the telephone not to go outside. If the jury had ...