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State of New Jersey v. Jerome Brooks

June 22, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEROME BROOKS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 05-10-1814.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 13, 2012

Before Judges Messano and Kennedy.

Defendant Jerome Brooks appeals from the September 24, 2010 order denying his petition for post conviction relief (PCR). Tried to a jury in October 2006, defendant was convicted of one count of knowing and purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1)(2), and two counts of felony murder, in violation of N.J.S.A. 2C:11-3(a)(3). He was sentenced on February 9, 2007, to a term of life imprisonment with a thirty-year parole ineligibility period, consecutive to any sentence he was then serving.

We affirmed defendant's conviction and sentence, State v. Brooks, No. A-4760-06 (App. Div. Oct. 22, 2009), and the Supreme Court denied defendant's petition for certification on January 28, 2010. State v. Brooks, 201 N.J. 156 (2010). In March 2010, defendant filed a pro se PCR petition and counsel was assigned to represent him. After hearing oral argument on September 24, 2010, the trial judge denied the petition and declined to conduct an evidentiary hearing. The trial judge thereupon entered an order, and this appeal followed.

In the brief filed by his counsel, defendant argues:

POINT I SINCE THE CLAIMED FIFTH, SIXTH,

AND FOURTEENTH AMENDMENT CONSTITUTIONAL VIOLATIONS TAINTED THE "JUSTNESS" OF THE DEFENDANT'S CONVICTION, THE ORDER DENYING DEFENDANT'S PETITION SHOULD BE REVERSED BECAUSE THE PCR COURT'S ENFORCEMENT OF THE PROCEDURAL BAR OF RULE 3:22-4 WITH REGARD TO "ISSUES OF THE QUESTION OF COUNSEL" WAS CONTRARY TO THE REMEDIAL PURPOSES OF POST-CONVICTION RELIEF AS ARTICULATED BY THE SUPREME COURT IN STATE V. RUE.

POINT II THE PCR COURT MISAPPLIED ITS

DISCRETION IN DENYING THE DEFENDANT'S PETITION WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE APPELLATE COUNSEL'S FAILURE TO RAISE THE BANKSTON ISSUE ON DIRECT APPEAL RESULTED IN PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

POINT III THE COURT'S RULING DENYING POST-

CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV DEFENDANT REASSERTS ALL OTHER

ISSUES RAISED IN POST-CONVICTION RELIEF.

(A)

TRIAL COUNSEL'S FAILURE TO MOVE TO SUPPRESS STATEMENTS THAT WERE OBTAINED IN VIOLATION OF THE POLICE [OBLIGATION] TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT TO COUNSEL AMOUNTED TO THE CONSTRUCTIVE DENIAL OF COUNSEL AND SEPARATELY, INEFFECTIVE ASSISTANCE OF COUNSEL, BOTH IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

(B)

PETITIONER WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT THEREFORE THE CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED.

In a pro se supplemental brief, defendant further argues:

(A)

THE PCR COURT ERRED WHEN IT DID NOT ADDRESS PETITIONER'S CLAIMS OF INEFFECTIVE ASSISTANCE IN THE FAILURE OF THE POLICE TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT TO COUNSEL AMOUNTED TO THE CONSTRUCTIVE DENIAL OF COUNSEL AND SEPARATELY, INEFFECTIVE ASSISTANCE OF COUNSEL, BOTH IN VIOLATION OF THE FIFTH, AND SIXTH, AMENDMENTS OF THE UNITED STATES CONSTITUTION.

(B)

PETITIONER WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT THEREFORE THE CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED.

We reject these arguments and affirm.

I.

We set forth at length the facts developed at trial as recited in our prior opinion:

Roberto Arenas, known as a small-time narcotics dealer, was murdered in Fair Lawn, New Jersey, on November 21, 1983. The Fair Lawn Police Department initiated an investigation into the homicide, which proved fruitless. The case remained dormant until sometime in 2004 when it was assigned to Detective Mark Bendul of the Bergen County Prosecutor's Office (BCPO) as a "cold case" for review. Bendul's review of the file revealed the names of Albert Bolt and defendant. Bendul focused his investigation on Bolt and defendant and coordinated with Detective John Ietto of the Fair Lawn Police Department, who had been the original detective assigned to the homicide.

At trial, the State's case was essentially based upon defendant's confession. Bendul was the only witness to testify at the pre-trial hearing on defendant's motion to suppress his confession. Bendul stated that he located defendant in the Passaic County Jail. On March 16, 2005, Bendul and Ietto met defendant at the jail and told him that they wanted to speak to him about an old case. Defendant agreed to accompany the detectives to the BCPO's Paramus office, arriving at approximately 10:30 a.m. Bendul told defendant that he had information that defendant, Albert Bolt and another individual named Ronald Wimbush had been involved in a murder in Fair Lawn in 1983. Defendant agreed to speak to Bendul and executed a Miranda*fn1 rights form. Bendul read all of the rights aloud to defendant who indicated that he understood each of them. At Bendul's request, defendant wrote the word "yes" next to each right and signed his initials. Bendul then asked defendant if he would speak to the officers without an attorney; defendant "verbally agreed."

Bendul showed defendant two photographs of Albert Bolt; defendant identified both photographs and stated that he knew Bolt as "Tafari." Defendant wrote the name Albert Bolt and the alias "Tafari" on the margin of each photograph and initialed them.

Bendul began discussing the investigation of the 1983 homicide. Defendant stated that he was not in Fair Lawn at that time and, in fact, had been in jail. Bendul took a break from the interview and ascertained defendant's incarceration status in 1983; he learned that defendant had been lodged in the Passaic County Jail on May 15, 1983, and was released on bail on June 28, 1983; the next time defendant was in the Passaic County Jail was December 5, 1983. Bendul informed defendant that the homicide had occurred in November 1983, and that the detective had determined that defendant was not in jail at that time. Defendant asked Bendul for the exact date of the homicide; when Bendul told him it was November 21, 1983, defendant "said that . . . he could have been on the street at that time."

Bendul told defendant that "based on the information that was . . . obtained during the investigation[,] . . . he was clearly involved in the murder of Roberto Arenas." Bendul also told defendant "that the investigation revealed that he was not the mastermind, that this was not his plan, that he was simply doing what . . . he was told by Albert Bolt." When "confronted with that scenario," defendant "became quiet, and put his head down, and stared at the floor."

When Bendul specifically asked defendant "if it was his idea[,]" defendant "shook his head, and said that it was not his idea . . . . He became very emotional, and he actually broke down and cried." Defendant stated "that he never killed anyone on his own, and . . . that since ...


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