On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 03-09-01213 and 04-09-1061.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011
Before Judges Cuff and Waugh.
Defendant Tivon Neals appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.
We discern the following facts and procedural history from the record on appeal.
Following a trial on two indictments, Neals was convicted of first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a)(1); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39- 5(b); fourth-degree retaliation against a witness or informant, contrary to N.J.S.A. 2C:28-5(b); and third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(a). After merging the possession of a weapon for an unlawful purpose charge into the murder charge, the trial judge sentenced Neals to incarceration for fifty years, subject to an eighty-five percent period of parole ineligibility. On the unlawful possession of a weapon conviction, the judge imposed a concurrent four-year term.
The judge also merged the terroristic threat conviction into the retaliation conviction, and imposed a consecutive prison term of four years with a one-year period of parole ineligibility.
Neals appealed his convictions and we affirmed. The Supreme Court denied certification. State v. Neals, No. A-5053- A-0207-10T2 04 (App. Div. June 25, 2007), certif. denied, 196 N.J. 86 (2008).
In December 2008, Neals filed his PCR petition, arguing primarily that he received ineffective assistance of trial counsel. Neals' assigned counsel supplemented his pro se petition, arguing, in part, that Neals' appellate counsel was also ineffective.
The trial judge heard argument on the petition on February 2, 2010. In a written opinion filed the same day, the judge dismissed the petition, concluding that Neals failed to establish that he received constitutionally ineffective assistance from either trial or appellate counsel. The judge also concluded that some of Neals' arguments were barred under Rule 3:22-5. This appeal followed.
The following facts, taken from our opinion on the direct appeal, were adduced at trial:
On August 2, 2003, defendant Tivon Neals, M.L., and Thomas T. were traveling to their friend's house in New Jersey to spend the weekend together. They drove in Thomas T.'s mother's red, two-door Mitsubishi Eclipse. A nine millimeter gun that belonged to Thomas T.'s mother was in the car. Thomas T. brought the unloaded weapon to show it to his friends and then placed it on the floor in the backseat of the car.
Defendant and M.L. lived in the same apartment building in Brooklyn, New York, and shared a group of friends, all of whom referred to defendant as "T." M.L. had been to New Jersey on prior occasions to visit H.C., nicknamed "H.," and Thomas T., a close, long-time family friend who lived in Cinnaminson. M.L. was "good friends" with defendant, but this was their first visit together to New Jersey. Thomas T. did not know defendant as well, although he met him previously at M.L.'s Brooklyn apartment.
The trio were staying in Camden for the weekend with H.C.'s grandfather. During the evening of August 4, 2003, defendant and H.C. got into an argument at the home of H.C.'s relatives. M.L. decided that he and defendant should return to Brooklyn. Despite the late hour, Thomas T. agreed to drive them to the train station in Trenton. At some point before leaving to take them to the train station, Thomas T. placed his mother's nine millimeter gun into the trunk because he did not want to have a gun in the car while driving such a noticeable car at a late hour. He explained that he gave the unloaded gun to M.L. to take with him to New York and that the gun was already in M.L.'s bag in the trunk.
At approximately 10 or 11 p.m., the young men were on their way to the station. Defendant occupied the passenger seat beside Thomas T. and M.L. sat in the backseat behind Thomas T. On the way to the train station, M.L. and defendant teased Thomas T. about "Jersey's country," so Thomas T. drove them to Burlington City to prove that New Jersey had a "hood." Thomas T. was unfamiliar with the Burlington City area and got lost.
Meanwhile, in Burlington City, James Nesbitt, a thirty-year-old resident, sat in front of his house, which was located at the corner of York Street and Clarkson Street. At approximately 12:30 a.m., a heavy-set 5'7" tall, African-American male named Anthony McNair tried to sell Nesbitt pornographic DVDs, which he carried in his hands, but Nesbitt declined to purchase them. The man walked away towards Clarkson Street while Nesbitt continued speaking with a friend.
Moments later, Thomas T. reached the intersection of York and Clarkson Streets and began making a right-hand turn. Thomas
T. noticed a heavy-set black man motioning to him. The man was the same person who had tried to sell the pornographic DVDs to Nesbitt. Thomas T. stopped the car. M.L., who had been lying down in the backseat, sat up thinking they were at the Trenton train station. He did not recognize the area and noticed that a black, middle-aged man was standing behind the car, motioning towards them. Thomas T. put the car in reverse towards the black male and stopped the car in front of him.
McNair approached the driver's side window and either leaned forward towards the window or actually leaned into the car. McNair asked Thomas T. "what do you need?" to which Thomas T. responded "what's you mean?" Thomas T. believed that McNair was trying to sell him something, although he did not see anything in his hands.
McNair reached toward his side with his right hand as he started to pull up his shirt. Thomas T. testified that he was not alarmed by McNair's action and did not see anything at the man's waistband or underneath his shirt. Although the dynamics of the car and Thomas T.'s head slightly obstructed M.L.'s view from the backseat, he was able to see McNair and saw him motion towards his navel. Like Thomas T., M.L. was not alarmed by McNair's movement and noticed that Thomas T. did not appear anxious.
Suddenly, M.L. heard a "bang" like a gunshot. At the same time, Thomas T. saw a flash in front of his face as he heard the sound of a loud "big pop." Both M.L. and Thomas T. noticed that McNair was no longer standing at the car window. M.L. thought McNair fired into the car and hid down. Then he smelled gun powder and felt a ringing sensation in his ears. Thomas T. was in shock and did not move. M.L. thought Thomas T. had been shot because he remained motionless.
M.L. saw defendant nudge Thomas T., who started the vehicle and sped off. He drove into Pennsylvania and returned to New Jersey. During this ride, M.L. saw Thomas
T. retrieve a bullet shell from somewhere in the car and hand it to defendant. M.L. does not know what defendant did with the bullet shell, but believes he threw it out the window. Afterwards, M.L. laid down, traumatized, and listened to the music in the car. He does not recall the particulars of any conversation with Thomas T. ...