NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued February 21, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1288.
Alan Dexter Bowman argued the cause for appellant (Mr. Bowman, attorney; Michael Confusione, Designated Counsel, (Public Defender) on the brief).
Robin Ann Hamett, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Zaire Evans appeals from the April 13, 2011 order denying his petition for post-conviction relief (PCR). We affirm.
A Camden County jury found defendant guilty of first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1), (count one); first-degree felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count three); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count five); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count six); third-degree endangering an injured victim, contrary to N.J.S.A. 2C:12-1.2 (count seven); and second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b) (count eight). After appropriate mergers, the court imposed an aggregate sentence of fifty years' imprisonment with thirty-five years of parole ineligibility.
We affirmed the conviction and remanded the case for resentencing on counts six and seven, and for reconsideration on count seven. State v. Evans, No. A-3398-03 (App. Div. Dec. 23, 2005), certif. denied, 187 N.J. 80 (2006).
Defendant was re-sentenced with a new aggregate sentence of forty-five years with thirty-two-and-a-half years of parole ineligibility. In 2006, defendant filed an appeal challenging the new sentence, and a PCR petition. The PCR petition was dismissed due to the pending appeal, and defendant later withdrew the appeal. The instant pro se PCR petition was filed in 2008 and raised claims of ineffective assistance of counsel for failure to: (1) adequately review discovery and police conduct related to the initial stop of defendant's vehicle, and the subsequent arrest and detention; (2) communicate with defendant; (3) call essential witnesses; (4) conduct pre-trial investigation and case preparation, and inadequate representation at trial; (5) establish that defendant was manipulated into providing a false statement; and (6) object to false testimony introduced at trial.
Assigned counsel filed a brief addressing different issues, namely ineffective assistance of counsel for: (1) failing to adequately explain the sentencing exposure to defendant; (2) making improper comments during closing argument; and (3) failing to call Joel Rivera and Norris Wallace, whose statements allegedly constituted newly discovered evidence. Defendant filed subsequent pro se supplemental briefs. Oral argument on the petition was heard before the Honorable Ronald J. Freeman, J.S.C., in April 2011.
The relevant facts as adopted by the PCR court are as follows:
The convictions arose from the murder of William Quinones (Wimo) who was shot to death on May 4, 2001, at approximately 11:00 P.M., on 25th and Federal Streets in Camden. An off-duty Camden City police officer was passing by at the time, when he witnessed a Hispanic male in a white car arguing with a tall, heavy-set black male. The black male was standing by the open car door. About one minute later, the officer heard three to five shots. He could not identify the two people. At the same time and location, a fifteen-year-old witness, who knew defendant and Wimo, saw defendant with "Yogi, " whom he also knew, and another male. He heard gunshots, looked over, and saw defendant with a gun in his hand and muzzle flashes coming ...