On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2011 - Decided
Before Judges Reisner and Ostrer.
Defendant Marvin Worthy appeals from an order entered October 8, 2009, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
A jury found defendant guilty of conspiracy to murder Rashon Roy, N.J.S.A. 2C:5-2,*fn1 first-degree murder of Roy, N.J.S.A. 2C:11-3, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. At the same trial, the jury convicted three co-defendants. The jury found co- defendants Renato Santos and Gregory Maples guilty of Roy's murder and conspiracy to commit Roy's murder. Santos was also convicted of possessing a weapon for an unlawful purpose. Lastly, the jury convicted James Irwin of hindering apprehension and theft, but acquitted him of attempted arson. A fifth indictee, Ernesto Barber, entered a plea of guilty for theft and testified for the State.
At sentencing, the court merged defendant's conspiracy conviction into the murder conviction and imposed a thirty-year sentence, with a thirty-year term of parole ineligibility, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a ten-year concurrent term on the weapons conviction, with a five-year period of parole ineligibility.
We affirmed defendant's conviction in an unpublished opinion that addressed both defendant's and Santos's appeal. State v. Santos, No. A-0065-04T4 (App.Div. Dec. 22, 2006); State v. Worthy, No. A-1846-04T4 (App.Div. Dec. 22, 2006). However, this court remanded, directing the trial court to correct the sentence by merging the weapons conviction into the murder conviction. The Supreme Court denied defendant's petition for certification. State v. Worthy, 190 N.J. 396 (2007).
Defendant then filed this PCR petition, in which he claimed that his trial counsel provided ineffective assistance by failing to conduct a reasonable pre-trial investigation that would have enabled him to obtain exculpatory statements from co- defendants Santos and Irwin, as well as non-defendants Steven Bennett and Jem Salamanca. Judge James Den Uyl, who did not preside at the trial, denied the petition without an evidentiary hearing in a thorough oral opinion issued on October 7, 2009. This appeal followed.
We view defendant's claim of unexplored exculpatory evidence in light of the trial evidence, which we described in detail in our opinion affirming defendant's conviction, and we excerpt below:
At the trial, Hakim Shabazz testified that Halim Shabazz was his twin brother, and that the decedent, Rashon Roy, was his older brother. He testified that Roy, Santos, and Maples were involved in a "business relationship." According to Hakim, on April 25, 2002, he and his two brothers were riding around in a van with Maples, Santos, and several other people. During the ride, Maples "was saying that my brother [Roy] tried to get him killed in Philly:"
Hakim also testified that during the argument in the van Maples "said . . . that he would kill us. That if he thought that my brother was trying to kill him, that he will kill all of us." . . .
Halim Shabazz also testified to the incident on April 25. According to Halim, Maples accused Roy of trying to have someone chase him in Philadelphia. . . . Maples then stated that "We going to handle this when my cousin [Worthy] get here." According to Halim, the group returned to Lakewood, picked up Worthy and dropped off Hakim. Thereafter, Maples, Worthy, Santos, Roy, and Halim set off in the van to spend the evening in Manhattan. However, instead of driving to Manhattan, Santos drove them to a "miniature golf place" near either Yonkers or Yankee Stadium, where all of the passengers got out to relieve themselves.
According to Halim, when he, Roy and Maples got back in the van, Worthy and Santos stayed outside the van and Worthy pointed a gun at Roy, while Santos pointed a gun at Halim. According to Halim's testimony, Santos and Worthy appeared to be taking direction from Maples:
Q. Where was Marvin Worthy?
A. Standing in front of my brother with a gun ...