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State of New Jersey v. Kevin Richards

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN RICHARDS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-02-0302.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 26, 2012

Before Judges A. A. Rodriguez and Ashrafi.

Defendant, Kevin Richards, appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

In July 2000, following a jury trial, defendant was convicted of several charges, including murder, felony murder, conspiracy to commit armed robbery, armed robbery, possession of a firearm for an unlawful purpose, and possession of a handgun without a permit. After appropriate merger of offenses, Judge Timothy J. Sullivan imposed concurrent terms aggregating a life sentence with a thirty-year period of parole ineligibility. We affirmed on direct appeal. State v. Kevin Richards, A-0869-00 (App. Div. June 30, 2003), certif. denied, 179 N.J. 369 (2004).

The proofs against defendant were fully set forth in our opinion on direct appeal. A-0869-00 at slip op. 2-6. We summarize the evidence to provide a context to our discussion. Defendant, Kevin Lee and Alva McLean conspired to commit an armed robbery of an off-duty police officer who worked part-time as a security guard for Sears in Hackensack. The conspirators noted, based on their surveillance, that one of the victim's duties was to place the Automotive Department's proceeds in a toolbox and transport it across a large parking lot to the main Sears building.

On April 19, 1996, the conspirators fatally shot the off-duty officer in order to retrieve the cash proceeds. The men divided the money and remained at large for many months. A long investigation followed, which ultimately led to the indictments and arrests of defendant, Lee and McLean.

After Judge Sullivan granted a motion to sever, defendant was tried separately from Lee. Numerous witnesses testified for the State. The defense presented additional witnesses and the defendant testified on his own behalf. After deliberation, the jury found defendant guilty.

In August 2004, defendant filed pro se a PCR petition. Defendant argued he was denied the effective assistance of trial counsel based on counsel's failure to conduct an adequate investigation. Defendant also challenged the representation by appellate counsel.

The first PCR petition was denied on September 10, 2004, by a letter to the pro se defendant. We reversed and remanded for referral of the matter to the Office of the Public Defender for appointment of counsel. State v. Richards, A-0893-04 (App. Div. Jun. 23, 2005).

Designated counsel filed a supplemental brief on behalf of defendant. On September 28, 2009, Judge Patrick J. Roma presided over the PCR petition hearing. Judge Roma issued an oral opinion denying the petition on the same day. After summarizing the facts and correctly identifying the governing Strickland/Fritz*fn1 standard, Judge Roma rejected all of defendant's arguments and comprehensively addressed his claims of denial of due process, violation of the Vienna Convention, ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and denial of an evidentiary hearing.

On appeal, defendant contends:

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR [PCR] AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

We reject this argument.

The standard for assessing an attorney's performance is well-known. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 693 (1984) The Supreme Court has adopted this standard for deciding claims of ineffective assistance arising under the New Jersey Constitution in State v. Fritz, 105 N.J. 42, 51 (1987). The first requirement is that defendant show that counsel's performance was deficient by making "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Moreover, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Here, judged against this standard, we conclude that defendant has failed to establish the first requirement. From our careful review of the record, we do not perceive that trial counsel provided ineffective assistance in any way.

With respect to defendant's claim of entitlement to an evidentiary hearing, we are mindful that when making such a decision, "courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a [prima facie] claim." State v. Preciose, 129 N.J. 451, 462-63 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a [prima facie] claim in support of post-conviction relief." Id. at 462.

However, "if the [trial] court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). We conclude that such is the case here.

Affirmed.


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