PRIMUS v. BONDS

**NOT FOR PUBLICATION**

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

DRAKE PRIMUS, :

: Civil Action No. 15-5671 (CCC)

Petitioner, :

:

v. : OPINION

:

WILLIE BONDS, :

:

Respondent. :

:

CECCHI, DISTRICT JUDGE.

Before the Court is the Amended Petition for a writ of habeas corpus of Petitioner Drake

Primus (“Petitioner”), brought pursuant to 28 U.S.C. § 2254. ECF No. 5. For the reasons set forth

below, Petitioner’s habeas petition is denied, and Petitioner is denied a certificate of appealability.

I. BACKGROUND

The following factual summary is taken from the opinion of the Superior Court of New

Jersey, Appellate Division, on direct appeal:

[Petitioner and his two co-defendants] were all charged in each of

the six counts of the indictment with the following offenses: (1)

second-degree aggravated assault, N.J.S.A. 2C:12–1b(1) and

N.J.S.A. 2C:2–6; (2) first-degree armed robbery, N.J.S.A. 2C:15–1

and N.J.S.A. 2C:2–6; (3) third-degree possession of a weapon (a box

cutter knife) for an unlawful purpose, N.J.S.A. 2C:39–4d; (4) fourth-

degree unlawful possession of a weapon (a box cutter knife),

N.J.S.A. 2C:39–5d; (5) third-degree possession of a weapon (a

baseball bat) for an unlawful purpose, N.J.S.A. 2C:39–4d; and (6)

fourth-degree unlawful possession of a weapon (a baseball bat),

N.J.S.A. 2C:39–5d.

. . .

Primus was found guilty of the offenses charged in Counts One

(second-degree aggravated assault), Two (first-degree armed

robbery), and Four (fourth-degree unlawful possession of a box

cutter knife); Primus was acquitted of Count Three.

. . .

In sentencing Primus, the court merged Count Four with Count Two

(first-degree robbery), for which it imposed a term of thirty-five

years imprisonment with an eighty-five percent parole disqualifier

and five years parole supervision pursuant to NERA. On Count One

(second-degree aggravated assault), the court imposed a concurrent

nine-year term with an eighty-five percent parole disqualifier and

three years parole supervision pursuant to NERA. The sentences

were ordered to be served consecutively to a sentence Primus was

then serving.

On December 6, 2005, at about 2:00 a.m., the Paterson police

received a call advising of a crime in progress at 775 East 19th

Street. The information was broadcast by radio, and within one to

two minutes, Detectives Jaime Navarro, Carlos Charon, and Felix

Arroyo arrived at the intersection of Park Avenue and Madison

Avenue, a location near the one described in the dispatch, where

they found Zabotinsky. The detectives were in plain clothes and

arrived in an unmarked vehicle.

Zabotinsky had parked his pickup truck at an irregular angle and

partially on the sidewalk. When the detectives arrived, another man

was standing outside the truck. This individual, who was never

identified and who left the scene, was trying to get Zabotinsky to

calm down. Zabotinsky’s throat had been slashed. A deep side-to-

side laceration exposed his esophagus. Before the detectives asked

Zabotinsky any questions, he stated that he was just robbed and

pointed toward 17th Avenue and 19th Street, indicating that was the

direction is which his assailants had gone. According to Charon,

Zabotinsky said that “three individuals” had robbed him. Navarro,

in describing what Zabotinsky said, did not say that he had specified

the number of attackers.

Charon described his perception of the circumstances,

acknowledging that it was a “very volatile situation,” and was

“[p]otentially violent.” He described it as a crime in progress, and

said it raised concerns in the minds of the detectives.

The detectives instructed Zabotinsky to remain at the scene with

another officer who had arrived and to wait for medical assistance.

The detectives then left, going in the direction Zabotinsky had

indicated, to search for the assailants.

At the same time that the detectives had responded to Zabotinsky’s

location, Officers Robert Orozco and Jonathan Catrolla were also

responding to the initial broadcast of a crime in progress. They were

on patrol together and were about ten blocks from the reported

location when they heard the dispatch. They were in police

uniforms and driving a marked police vehicle. They activated their

lights and siren and arrived at Madison Avenue and 17th Avenue

within one minute of hearing the dispatch.

About one block from the location where Zabotinsky was found,

Orozco and Catrolla encountered three men on 17th Avenue

between Madison Avenue and 19th Street. The three were later

identified as the three defendants. They were walking away from

19th Street, the area where Zabotinsky was located. They were the

only individuals in the area. The officers got out of their vehicle and

directed the men to stop. They did not comply, but continued

walking toward the officers. Another Officer, Scott Eason, also

arrived at the scene within about one minute of the dispatch. He

approached Primus from behind and tackled him. Eason searched

Primus and found a set of keys in his pants pocket, which was later

determined to be Zabotinsky’s.

Detectives Navarro, Charon and Arroyo arrived as the defendants

were being detained by the other officers. Navarro retraced the route

between the arrest location and the location where they had

encountered Zabotinsky. He found a blue aluminum baseball bat,

later identified as belonging to Zabotinsky. In the street, in front of

781 East 19th Street (very close to the location reported by the caller

to the police, namely, 775 East 19th Street), Navarro located a size

eleven Vans sneaker, several items of clothing, and an automobile

insurance declaration page for Zabotinsky’s policy. When the

detectives had first encountered Zabotinsky, he was wearing no

shoes. At trial, Zabotinsky’s father identified the clothing and

insurance document as articles belonging to his son. He also said

that his son wore size eleven Van sneakers like the one recovered at

the scene.

Defendants were transported to police headquarters and processed.

No money or evidence was found on Manigo or Dix. However,

Primus’ sweater was stained with blood. DNA testing revealed that

the blood on Primus’ sweater was Zabotinsky’s. After the three

defendants were detained, Zabotinsky drove his pickup truck

approximately one block to their location. He identified them as his

assailants. This occurred about twelve to fourteen minutes after the

attack. In the course of that encounter, Zabotinsky made other

statements regarding the attack on him.

Zabotinsky was then transported to the hospital in an ambulance.

While in the ambulance, Charon briefly interviewed Zabotinsky,

and received further information from him about the incident while

medical treatment was being administered. Subsequently,

Zabotinsky gave a formal statement to the police.

At trial, none of the defendants testified or called any witnesses.

ECF No. 12-15 at 3–5, 9–12.

Petitioner appealed his conviction and sentence, and the Appellate Division affirmed on

August 1, 2011. ECF No. 12-15. The New Jersey Supreme Court denied certification on January

13, 2012. ECF No. 12-22. Petitioner filed a petition for post-conviction relief (“PCR”), which was

denied on March 14, 2013. ECF No. 12-13 at 12–20. Petitioner appealed the denial of PCR and

the Appellate Division affirmed on December 12, 2014. ECF No. 12-24. The New Jersey Supreme

Court denied certification on April 30, 2015. ECF No. 12-29. Petitioner then filed a habeas petition

with this Court, which he executed on July 13, 2015. ECF No. 1. The Court administratively

terminated the case and Petitioner filed an Amended Petition, executed on January 4, 2016, in

which he raises four grounds for relief:

1. Trial counsel was ineffective for not filing the pre-trial suppression motion challenging

the Paterson Police for tampering with the evidence, specifically, money taken from

petitioner upon arrest.

2. Trial and appellate counsel were ineffective for not objecting to the prosecution’s

failure to dismiss the aggravated assault [charge] against petitioner, based upon co-

defendant ultimately being charged for this specific crime by the State.

3. Trial and appellate counsel were ineffective for not challenging the trial judge’s finding

of aggravating factors and petitioner’s juvenile record to impose an extended term

sentence, violating petitioner’s [S]ixth [A]mendment right to trial by jury, also

petitioner[’]s Fourteenth [A]mendment of Due Process [rights].

4. Trial and appellate counsel were ineffective for not challenging the prosecutor’s abuse

of discretion, violating Brady v. Maryland, also the trial court [decision] was contrary

to, and applied an unreasonable application to clearly established law concerning Brady

v. Maryland, violating petitioner’s Due Process [rights].

ECF No. 5.

Respondents filed an Answer in which they argue that all four of Petitioner’s claims are

unexhausted and lack merit. ECF No. 15-1.1

II. LEGAL STANDARD

Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of

habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim

presented in his petition. See Harrington v. Richter, 562 U.S. 86, 98 (2011); Price v. Vincent, 538

U.S. 634, 641 (2003). District courts are required to give great deference to the determinations of

the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773 (2010).

Where a claim has been adjudicated on the merits by the state courts, the district court shall

not grant an application for a writ of habeas corpus unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2). Federal law is clearly established for these purposes where it is clearly

expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States

1 The Court has received and reviewed additional letter submissions from Petitioner. ECF Nos.

16–26.

Supreme Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). “When reviewing state

criminal convictions on collateral review, federal judges are required to afford state courts due

respect by overturning their decisions only when there could be no reasonable dispute that they

were wrong.” Id. Where a petitioner challenges an allegedly erroneous factual determination of

the state courts, “a determination of a factual issue made by a State court shall be presumed to be

correct [and the] applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

In addition to the above requirements, a federal court may not grant a writ of habeas corpus

under § 2254 unless the petitioner has “exhausted the remedies available in the courts of the State.”

28 U.S.C. § 2254(b)(1)(A). To do so, a petitioner must “‘fairly present’ all federal claims to the

highest state court before bringing them in federal court.” Leyva v. Williams, 504 F.3d 357, 365

(3d Cir. 2007) (citing Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002)). This

requirement ensures that state courts “have ‘an initial opportunity to pass upon and correct alleged

violations of prisoners’ federal rights.’” Id. (citing United States v. Bendolph, 409 F.3d 155, 173

(3d Cir. 2005) (quoting Duckworth v. Serrano, 454 U.S. 1, 3 (1981)). To the extent that a

petitioner’s constitutional claims are unexhausted, a court can nevertheless deny them on the

merits under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416, 427 (3d Cir. 2007);

Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005).

III. DISCUSSION

Petitioner raises four claims of ineffective assistance of counsel, all of which lack merit.

The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of Counsel for

his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective assistance

of counsel, and counsel can deprive a defendant of the right by failing to render adequate legal

assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel’s

assistance was so defective as to require reversal of a conviction has two components, both of

which must be satisfied. Id. at 687. First, the defendant must “show that counsel’s representation

fell below an objective standard of reasonableness.” Id. at 687–88. To meet this prong, a

“convicted defendant making a claim of ineffective assistance must identify the acts or omissions

of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at

690. The court must then determine whether, in light of all the circumstances at the time, the

identified errors fell “below an objective standard of reasonableness.” Hinton v. Alabama, 134 S.

Ct. 1081, 1088 (2014).

Second, a petitioner must establish that counsel’s “deficient performance prejudiced the

defense so as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 669. To establish

prejudice, the defendant must show that “there is a reasonable probability that the result of trial

would have been different absent the deficient act or omission.” Id. at 1083. On habeas review, it

is not enough that a federal judge would have found counsel ineffective. The judge must find that

the state court’s resolution of the issue was unreasonable, a higher standard. Harrington v. Richter,

562 U.S. 86, 101 (2011).

A. Pre-trial Motion

In his first ground, Petitioner argues that his trial counsel erred in failing to file a pre-trial

motion challenging the conduct of the Paterson Police Department, which he argues tampered with

evidence. ECF No. 5 at 7. In Petitioner’s Amended Memorandum in support of his habeas claims

(ECF No. 13), he explains that upon his arrest, $71.00 was taken from him and tagged by the

arresting officers as evidence. Subsequently, he states that the officers gave $60.00 of that money

to the victim. He explains that the decision to hand over evidence to the victim was improper and

his counsel’s failure to challenge the infraction violated his constitutional rights. Respondents

argue the claim is unexhausted. A review of the record, however, demonstrates that the claim was

raised, to some degree, below. See ECF Nos. 12-26 at 38; 12-25 at 25; 12-28 at 13. To the extent

this claim is not fully exhausted, it is dismissed on the merits under 28 U.S.C. § 2254(b)(2) for the

reasons discussed below.

The Appellate Division, in affirming the denial of PCR, denied the claim, explaining:

The governing law is well established. The Sixth Amendment of

the United States Constitution guarantees a person accused of crime

the effective assistance of legal counsel in his defense. Strickland

v. Washington, 466 U.S. 668, 685–88, 104 S. Ct. 2052, 2063–64, 80

L. Ed. 2d 674, 692–93 (1984). To establish a deprivation of that

right, a convicted defendant must satisfy the two-part test enunciated

in Strickland by demonstrating that: (1) counsel’s performance was

deficient, and (2) the deficient performance actually prejudiced the

accused’s defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at

693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the

Strickland two-part test in New Jersey).

In reviewing such claims of ineffectiveness, courts apply a strong

presumption that defense counsel “rendered adequate assistance and

made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, supra, 466 U.S. at 690, 104 S.

Ct. at 2066, 80 L. Ed. 2d at 695. “The quality of counsel’s

performance cannot be fairly assessed by focusing on a handful of

issues while ignoring the totality of counsel’s performance in the

context of the State’s evidence of defendant’s guilt.” State v.

Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123

N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122

L. Ed .2d 694 (1993)).

“As a general rule, strategic miscalculations or trial mistakes are

insufficient to warrant reversal ‘except in those rare instances where

they are of such magnitude as to thwart the fundamental guarantee

of [a] fair trial.’” Id. at 314–15 (quoting State v. Buonadonna, 122

N.J. 22, 42 (1991)). “‘[A]n otherwise valid conviction will not be

overturned merely because the defendant is dissatisfied with his or

her counsel’s exercise of judgment during the trial.’” State v.

Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187

N.J. at 314).

As Judge Reddin correctly recognized, this case is not a “rare

instance” in which the presumption of trial counsel’s effectiveness

has been overcome. The proofs against Primus and his co-

defendants were exceedingly strong, and his criticisms of his

attorney’s performance are without merit.

. . .

The ineffectiveness claims based upon trial counsel’s alleged and

unspecified lack of adequate investigation, and counsel’s failure to

file a motion to suppress, is based upon sheer speculation that such

efforts would have been fruitful. As Judge Reddin rightly observed,

the proofs of guilt here were “overwhelming.”

ECF No. 12-24 at 3–6.

Judge Reddin, in denying Petitioner’s application for PCR, during the PCR hearing,

explained:

The victim, as [the State] said, was horrifically attacked, savagely

attacked, cut from ear to ear with a box cutter. Think about the

horror associated with that. And although he probably bled

profusely, a small amount of his blood ended up on one of the

defendant’s clothing.

His bat, which is a unique item, later identified by his father, was

nearby where the defendants were arrested. The victim’s keys were

found and this was all in close proximity to the location of the crime.

And the victim indicated that the three males that assaulted him --

he gave the description. And the assailants who were arrested, the

defendant in this case, matched the description. So the evidence was

overwhelming.

ECF No. 12-13 at 13.

The Appellate Division’s application of Strickland to the facts of this case is not

unreasonable. First, while the trial transcript indicates that money was found on Petitioner (ECF

No. 12-8 at 24), it does not reflect that any portion of that money was turned over to the victim.

Attached to Petitioner’s Amended Memorandum, however, is an unspecified document which

Petitioner claims is a detective’s supplemental notes, that states in relevant part: “[t]he victim was

given $60.00 in cash from the amount recovered from Mr. Primus. The additional $11.00 was

tagged under property tag #31365.” ECF No. 13 at 21. Even assuming the supplemental notes are

accurate and the victim was given $60, Petitioner has still failed to demonstrate how returning $60

to the victim prejudiced him, as required under the second prong of Strickland. As noted by the

state courts and verified by the record, there was substantial evidence linking Petitioner to the

crime. While the victim had since passed away and was unable to testify, one officer testified that

he recovered the victim’s keys on Petitioner (ECF No. 12-6 at 37; ECF No. 12-8 at 8), the victim’s

blood was found on Petitioner’s clothing (ECF No. 12-7 at 57), and various items from the victim,

such as his shoes and clothing, were found scattered on the street near where Petitioner and the

other defendants were apprehended. ECF No. 12-8 at 11–13. Petitioner has, therefore, failed to

demonstrate that absent the alleged misconduct in returning the money to the victim, it is

reasonably probable that the outcome of the case would have been different. Thus, the state court’s

rejection of this claim was not an unreasonable application of clearly established Supreme Court

law.2

2 Petitioner’s papers can also be construed to make an additional claim in which he appears to

argue that his search and arrest without a warrant violated his constitutional rights. ECF No. 13 at

9. To the extent Petitioner is claiming that it was unlawful for the officers to search him, this falls

within one of the well-delineated exceptions to the warrant requirement—namely, a search

incident to a lawful arrest based on probable cause, and his claim is therefore denied as it is without

merit. See Arizona v. Gant, 556 U.S. 332, 338, (2009). Insofar as Petitioner is instead asserting

that the charging officer should have issued him a complaint warrant rather than a complaint

summons when initially charging him with his weapons charge, Petitioner was in no way

prejudiced. Petitioner was charged in the same instance with aggravated assault on a complaint

warrant and was ultimately indicted for his crimes, and any issue concerning the weapons charge

initial complaint summons serves as no basis for habeas relief. Brecht v. Abrahamson, 507 U.S.

619, 637 (1993).

B. Ground Two: Failure to Dismiss Aggravated Assault Charge

In Petitioner’s next ground for relief, he argues in the heading that his trial and appellate

counsel erred in failing to have his aggravated assault charge dismissed based upon his co-

defendants’ being charged with the same crime. ECF No. 13 at 10. However, in his facts

supporting this claim, he makes two entirely different arguments. First, he argues that the court

failed to give a proper instruction on accomplice liability, and second, he argues that his rights

under the Confrontation Clause were violated based on the Supreme Court holding in Crawford v.

Washington, 541 U.S. 36 (2004). ECF No. 13 at 10–11. The Court will address all three arguments.

On the first point, Petitioner’s claim is unexhausted. Putting that aside, Petitioner has

provided no facts or argument to support his claim that because his co-defendants were charged

with third-degree aggravated assault, he is therefore innocent of his second-degree aggravated

assault conviction. As noted earlier in the Opinion, the record demonstrates that all three

individuals were found near the crime scene within minutes of the attack on the victim, and

Petitioner was found with the victim’s blood on his clothing and the victim’s keys in his pocket.

Because the victim had since passed away and was unable to testify, and the majority of the

victim’s statements to the police were not admitted into evidence, it was impossible for the jury to

determine who in fact cut the victim’s throat. Thus, the thrust of the State’s case came down to

accomplice liability. New Jersey law provides that an individual can be found liable for the

conduct of another when he is complicit in the offense. See N.J. Stat. Ann. § 2C:2-6. Here, it was

certainly possible for the jury to convict all three defendants of aggravated assault. The Court is,

therefore, satisfied that trial counsel was not deficient under Strickland and counsel’s performance

did not fall below an objective standard of reasonableness in failing to move for dismissal of the

aggravated assault charge.

Petitioner also takes issue with the jury instruction on accomplice liability. Petitioner

raised this claim on direct appeal, and the Appellate Division rejected the claim, explaining:

Primus argues that the accomplice liability instruction was

inadequate. The argument primarily focuses on the judge’s failure

to closely follow the structure and language of the model jury

charge. In doing so, Primus contends that the judge omitted portions

of the model charge (1) instructing that an accomplice and the

principal may be found equally responsible or responsible to a lesser

degree, (2) requiring that for a defendant to be found guilty for

another’s conduct he must be found to have acted as the principal’s

accomplice and also to have had the purpose to commit the specific

crime alleged, (3) requiring the State to establish that the defendant

solicited, aided, or agreed to aid or attempted to aid in planning or

committing the alleged crime, (4) requiring the State to prove that

the defendant possessed the criminal state of mind that is required

to be proved against the person who actually committed the act, and

(5) directing the jury to either find guilt of the charge or move on to

consideration of lesser included offenses.

None of the defendants objected to the charge as given, and we are

accordingly guided by the plain error standard, which we have

previously described. Our review of the entire accomplice liability

charge satisfies us that the judge correctly and adequately explained

all of the principles of accomplice liability, although not following

the precise format set forth in the model charge.

Our conclusion is bolstered by the jury verdict. The jurors did not

find all three defendants guilty of the same offenses. While finding

Primus (who had Zabotinsky’s keys in his pocket and Zabotinsky’s

blood on his sweater) guilty of the charged offenses of first-degree

armed robbery and second-degree aggravated assault, they found

Manigo and Dix not guilty of those offenses but guilty of lesser-

included offenses. It is clear that the jurors understood that they

could assess differing degrees of culpability among the participants

in the crime, and they did so.

ECF No. 12-15 at 44–46.

A jury charge, even if inconsistent with state law, does not automatically warrant federal

habeas relief. “[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis

for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). Instead a federal court must

assess “whether the ailing instruction by itself so infected the entire trial that the resulting

conviction violates due process.” Id. at 72 (internal citation and quotations omitted). A habeas

petitioner must establish that the instructional error “had [a] substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

The Due Process Clause is violated only where “the erroneous instructions have operated to lift

the burden of proof on an essential element of an offense as defined by state law.” Smith v. Horn,

120 F.3d 400, 416 (3d Cir. 1997).

Petitioner points to minor differences between the recommended model instructions and

the charge given. However, this challenge alone is insufficient to grant Petitioner habeas relief.

See, e.g., Hackett v. Price, 381 F.3d 281, 314 (3d Cir. 2004) (a change reflected in model

instructions “does not in itself indicate that its former instructions . . . were constitutionally

infirm”); Berrisford v. Wood, 826 F.2d 747, 754 (8th Cir. 1987) (“Though the instructions [given]

differ[ed] to some degree from suggested pattern instructions used in [the State], the errors therein,

if any, clearly do not rise to the level of constitutional significance.”). Instead, the record indicates

that the trial court properly instructed the jury on accomplice liability, delineating the elements

and instructing the Jury that the burden of proof rests with the State, and explaining that an

accomplice may possess a different criminal state of mind than other defendants involved in the

crime. ECF No. 12-11 at 28–32. Thus, because the trial court did not lift the burden of proof on

an essential element of the offense charged, Petitioner has failed to show that he is entitled to relief

on this claim.

Petitioner also alleges that his rights under the Confrontation Clause were violated when

the judge ruled that certain statements made by the victim could be admitted into evidence, despite

the victim being unavailable to testify at trial. Petitioner raised this claim on direct appeal, and the

Appellate Division rejected the claim, laying out the relevant background and providing thorough

analysis:

All three defendants argue that the judge erred in admitting the

statement Zabotinsky made when the detectives first arrived at the

scene. They argue that the statement was not properly found to

constitute an excited utterance, as a result of which it should not

have been admitted as an exception to the hearsay rule. They further

argue that the statement was testimonial, as a result of which its

admission was precluded under the Confrontation Clause.

. . .

At the December 21, 2007 Rule 104(a) hearing, Judge Marmo

considered the four statements made by Zabotinsky. He ruled that

the last three (the show-up identification at the scene, the ambulance

interview, and the formal statement) were inadmissible, and those

statements are not a subject of this appeal. The disputed issue

pertains only to Zabotinsky’s statement to the detectives when they

first arrived, stating that he was robbed and that the perpetrators

went in a particular direction. And, one of the detectives testified at

trial (although not at the Rule 104(a) hearing) that Zabotinsky

quantified the number of perpetrators as three.

[Detective] Charon was the only witness at the hearing. He testified

that he and [Detective] Navarro arrived in the same vehicle, and

[Detective] Arroyo arrived in a separate vehicle. He described the

manner in which Zabotinsky’s truck was parked as we have

previously described it. He said when he first encountered

Zabotinsky he was “shaken up,” “nervous,” and had a slash on his

throat from one side of his neck to the other. When Zabotinsky lifted

his head, Charon could see that the cut was deep and that part of his

esophagus and neck tissue were exposed. He said Zabotinsky was

“nervous and frantic,” but doubted that Zabotinsky appreciated the

extent of his injury. Charon said he told Zabotinsky to keep his head

down and that he tried to calm him down.

When asked about the exact conversation he had with Zabotinsky,

Charon read from his report: “[Zabotinsky] immediately uttered that

he had just been robbed and that the suspects fled down East 19th

Street towards 17th Avenue. At that time we noticed the blood

around his neck area. I instructed him to remain there until we

checked the area [for] the suspects.” Charon further testified that

Zabotinsky made the statement before Charon or any of the other

detectives said anything to him. About three to four minutes had

elapsed between the dispatch and the detectives’ initial encounter

with Zabotinsky.

Charon said that the detectives had their badges showing, but they

“didn’t even get to say that [they] were police officers when he

advised [them] that he had just been robbed.”

Based upon that testimony, Judge Marmo found that Zabotinsky’s

statement was admissible. He set forth his reasons as follows:

Now taking that body of law and applying it to what

we have here, let me say that I have nothing before

me to contradict the testimony of Detective Charon

with regard to the time lines he’s given us and to the

condition of the victim upon his arrival. And from

that I can readily find as a fact that he arrived in the

presence of the victim almost immediately after this

incident occurred, because the dispatch is that the

robbery is in progress.

And when he arrives the statement that is made by

the victim is not even in response to a question.

Certainly this person has had their throat slashed

from side to side, they’re excited, shaken up as he

said, nervous as you can imagine. This is minutes

after this incident happened. And without being [in]

response to any statement put to him, the

uncontradicted testimony is that [Zabotinsky] tells

him that he was just robbed and the suspects fled

toward East 19th [Street] and 17th [Avenue].

Now because this is such a critical ruling for the

parties, although I’m frankly comfortable with how

I’ve drawn the line here and where I’ve struck the

balance, I’m satisfied that this is admissible—this is

not testimonial, this was not made looking towards a

future prosecution. This was made for the purposes

of reporting just what happened and telling the police

what—giving the police information as to what they

are dealing with. In any event this is a judgment as

to this particular area. So I find that to be admissible.

Defendants argue that because the police arrived three to four

minutes after the incident occurred, there was a sufficient lapse of

time to enable Zabotinsky to deliberate and fabricate in crafting the

statement. They contend that Zabotinsky was no longer under the

stress of the event because (1) he was subsequently able to drive his

truck to the location where the defendants were detained for

purposes of making an identification, and (2) he was able to provide

a statement at police headquarters later that night which omitted

information he previously gave that he was in the area to buy drugs

with two other individuals.

. . .

We turn now to the . . . Confrontation Clause issue. Our resolution

of this issue requires a determination of whether Judge Marmo erred

in finding that the statement was not testimonial. Part of that

analysis requires consideration of whether the statement was made

during an ongoing emergency. This trial was conducted before the

United State Supreme Court’s recent decision in Michigan v.

Bryant, 562 U.S. [344], 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), a

case with facts very similar to these, in which the Court provided

significant guidance regarding the admissibility of statements such

as that made by Zabotinsky.

We begin by summarizing the development over the last several

years of Confrontation Clause jurisprudence. Even if a statement

falls within a recognized exception to the hearsay rule, it still must

satisfy the Confrontation Clause. Branch, supra, 182 N.J . at 369–

70 (“Crawford [v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158

L. Ed.2d 177 (2004)] is a reminder that even firmly established

exceptions to the hearsay rule must bow to the right of

confrontation.”). The Sixth Amendment to the United States

Constitution and Article I, Paragraph 10 of the New Jersey

Constitution guarantee a criminal defendant the right to confront

witnesses against him. U.S. Const. amend. VI; N.J. Const. art. I, ¶

10. The right to confrontation is essential to a fair trial; it requires a

defendant to have a “‘fair opportunity to defend against the State[’s]

accusations.’” Branch, supra, 182 N.J. at 348 (quoting State v.

Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124

S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). The right of confrontation

is exercised through cross-examination, the “‘greatest legal engine

ever invented for the discovery of truth.’” Ibid. (quoting California

v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489,

497 (1970)).

However, “the Confrontation Clause does not condemn all hearsay.”

Id. at 349 (citing Crawford v. Washington, 541 U.S. 36, 51, 124 S.

Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004)). “An established

and recognized exception to the hearsay rule will not necessarily run

afoul of the Confrontation Clause. A defendant’s confrontation

right must accommodate legitimate interests in the criminal trial

process, such as established rules of evidence and procedure

designed to ensure the efficiency, fairness, and reliability of criminal

trials.” Ibid. (quotations and citations omitted).

In Crawford v. Washington, supra, the United States Supreme Court

held that the Confrontation Clause is violated by admitting an absent

witness’s testimonial statement unless the witness was unavailable

to testify and the defendant had a prior opportunity to cross-examine

the witness. 541 U.S. at 54, 124 S. Ct. at 1365–66, 158 L. Ed. 2d at

194. In Davis v. Washington, the Court clarified what constitutes a

testimonial statement. 547 U.S. 813, 822, 126 S. Ct. 2266, 2273–

74, 165 L. Ed. 2d 224, 237 (2006).

Statements are nontestimonial when made in the course of

police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency.

They are testimonial when the circumstances objectively

indicate that there is no such ongoing emergency, and that

the primary purpose of the interrogation is to establish or

prove past events potentially relevant to later criminal

prosecution.

[Ibid.]

The Davis Court’s application of this standard is informative. In

Davis, a 911 emergency operator spoke telephonically with a

woman who was in the midst of an ongoing domestic disturbance

with her former boyfriend. Id. at 817, 126 S. Ct. at 2271, 165 L. Ed.

2d at 234. The operator asked the woman questions about events as

they were happening; the woman was not describing past events,

and was not responding to questions during an interrogation that

took place hours after the events had occurred. Id. at 827, 126 S. Ct.

at 2276, 165 L. Ed. 2d at 240. The court found that any reasonable

listener would have recognized that the woman was facing an

ongoing emergency; of note, during the conversation, the woman

told the operator that her former boyfriend ran out and left with

someone in a car. Id. at 818, 827, 126 S. Ct. at 2271, 2276, 165 L.

Ed. 2d at 234, 240.

The Court found that the statements were made to the operator to

resolve the present emergency, not to detail past events. Id. at 827,

126 S. Ct. at 2276, 165 L. Ed. 2d at 240. Specifically, the operator

made efforts to “establish the identity of the assailant, so that the

dispatched officers might know whether they would be encountering

a violent felon.” Ibid. Thus, the statements had the “primary

purpose” of enabling police to “meet an ongoing emergency.” Id.

at 828, 126 S. Ct. at 2277, 165 L. Ed. 2d at 240. The Court

determined the woman’s statements to the emergency operator, at

least up to the time the former boyfriend fled from the house and left

in a car, were not testimonial. Id. at 829, 126 S. Ct. at 2277, 165 L.

Ed. 2d at 241.

New Jersey courts recognize and follow Crawford and Davis when

addressing hearsay statements and the Confrontation Clause. See

State v. Buda, 195 N.J. 278, 299–308 (2008); State ex rel. J.A., 195

N.J. 324, 341–51 (2008).

Most recently, the United States Supreme Court addressed the issue

of testimonial statements and ongoing emergencies again, this time

in the context of a case in which officers responded to a radio

dispatch that a man had been shot. Michigan v. Bryant, supra, 562

U.S. at [348], 131 S. Ct. at 1150, 179 L. Ed. 2d at 102. Officers

found the victim lying on the ground next to his car in a gas station

parking lot. Ibid. The officers asked the victim what happened, who

shot him, and where the shooting occurred, to which the victim

responded that “Rick” had shot him. Ibid. The victim told officers

that he spoke with the defendant through the closed back door of the

defendant’s home, and when the victim turned to leave, he was shot

through the door; he then drove to the gas station. Ibid. Thereafter,

emergency medical services arrived and transported the victim to a

hospital, where he died a few hours later. Ibid.

The Bryant Court noted that this case required the Court to provide

additional clarification about what Davis meant by “‘the primary

purpose of the interrogation is to enable police assistance to meet an

ongoing emergency.’” Id. at [345], 131 S. Ct. at 1156, 179 L. Ed.

2d at 108 (quoting Davis, supra, 547 U.S. at 822, 126 S. Ct. at 2273,

165 L. Ed. 2d at 237). The Court described the analysis as follows:

As we suggested in Davis, when a court must

determine whether the Confrontation Clause bars the

admission of a statement at trial, it should determine

the “primary purpose of the interrogation” by

objectively evaluating the statements and actions of

the parties to the encounter, in light of the

circumstances in which the interrogation occurs. The

existence of an emergency or the parties’ perception

that an emergency is ongoing is among the most

important circumstances that courts must take into

account in determining whether an interrogation is

testimonial because statements made to assist police

in addressing an ongoing emergency presumably

lack the testimonial purpose that would subject them

to the requirement of confrontation. As the context

of this case brings into sharp relief, the existence and

duration of an emergency depend on the type and

scope of danger posed to the victim, the police, and

the public.

[Id. at [370–71], 131 S. Ct. at 1162, 179 L. Ed. 2d at 114–15

(emphasis in App. Div. decision and footnote omitted).]

Applying that analysis to the facts, the [Bryant] Court stated:

For their part, the police responded to a call that a

man had been shot. As discussed above, they did not

know why, where, or when the shooting had

occurred. Nor did they know the location of the

shooter or anything else about the circumstances in

which the crime occurred. The questions they asked

. . . were the exact type of questions necessary to

allow the police to “‘assess the situation, the threat to

their own safety, and possible danger to the potential

victim’” and to the public, Davis, 547 U.S., at 832,

126 S. Ct. 2266, 159 L. Ed. 2d 224 (quoting Hiibel v.

Sixth Judicial Dist. Court of Nev., Humboldt Cty.,

542 U.S. 177, 186, 124 S. Ct. 2451, 159 L. Ed. 2d

292 (2004)), including to allow them to ascertain

“whether they would be encountering a violent

felon,” Davis, 547 U.S. at 827, 126 S. Ct. 2266, 165

L. Ed. 2d 224. In other words, they solicited the

information necessary to enable them “to meet an

ongoing emergency.” Id., at 822, 126 S. Ct. 2266,

165 L. Ed. 2d 224.

[Bryant, supra, 562 U.S. at [375–76], 131 S. Ct. at 1165–66, 179 L.

Ed. 2d at 118–19 (footnotes omitted).]

Accordingly, the Court held that the victim’s identification and

description of the shooter and the location of the shooting were not

testimonial hearsay, and thus not barred at trial by the Confrontation

Clause. Id. at 377–78], 131 S. Ct. at 1166–67, 179 L. Ed. 2d at 119.

The case before us is very similar to Bryant. The detectives

responded to Zabotinsky’s location in response to a dispatch that

advised of a crime in progress. As in Bryant, the detectives did not

know why or how Zabotinsky’s throat had been slashed, by whom,

where the assailant or assailants were, or the specific location where

the crime had occurred. The situation was aptly described as

“volatile.” Zabotinsky’s statement was made spontaneously and

voluntarily, not in response to police interrogation. As in Bryant,

the information the detectives received from Zabotinsky enabled

them to respond to an ongoing emergency, in which they might seek

out and find armed attackers that had just committed a violent crime.

The information received was not solicited for future prosecution, it

came as part of the initial contact between police and a victim,

immediately following a violent crime, and prior to the

apprehension of potentially violent criminals. Once the detectives

learned this information from Zabotinsky, they left him at the scene

with another officer and went in pursuit of his attackers.

Further, unlike in Bryant, there is no need for us to ascertain the

“primary” purpose of police interrogation that elicited the disputed

statement. This is because there was no interrogation at all.

Defendants hypothesize that had Zabotinsky not spoken first, the

detectives surely would have asked him what happened. Therefore,

defendants suggest that the circumstances were tantamount to police

questioning, similar to what occurred in Bryant. Even if that is so,

the result is the same. The only purpose was not to memorialize past

events for purposes of a future prosecution, but to deal effectively

and sensibly with an ongoing emergency in the immediate aftermath

of a violent crime.

Accordingly, we agree with Judge Marmo that Zabotinsky’s

statement when first encountered by detectives at the scene was not

testimonial, and its admission in evidence did not violate

defendants’ Confrontation Clause rights.

ECF No. 12-15 at 12–27.

This Court finds that the well-reasoned decision of the Appellate Division on this matter

was neither contrary to, nor an unreasonable application of, Supreme Court precedent laid out in

Crawford and its progeny. In Crawford, the Supreme Court declined to give a comprehensive

definition of the term “testimonial,” but did provide examples of testimonial statements. 541 U.S.

at 51–52, 68. Subsequently in Davis, the Supreme Court provided further clarification of what

constitutes a testimonial statement made to police, clarifying that where “the primary purpose of

the [police] interrogation is to enable police assistance to meet an ongoing emergency” the

statement is non-testimonial. 547 U.S. at 822. Thus, a court must consider whether the statements

were made with a future criminal prosecution in mind. See Crawford, 541 U.S. at 51 (holding that

an example of a testimonial statement is one that “declarants would reasonably expect to be used

prosecutorially”).

Here, it is evident that the victim’s statements were not testimonial. The record shows that

the victim’s initial statements to the police were unprompted, made while the victim was still under

great distress and in shock after having had his throat cut. ECF No. 12-1 at 11. Detective Charon

read the victim’s limited statement during the hearing: “Mr. Z[abotinsky] immediately uttered that

he had just been robbed and that the suspects fled down East 19th Street towards 17th Avenue.” Id.

at 15. Given these circumstances, it cannot be argued that these statements were made with an eye

toward future criminal prosecution, and, therefore, the Confrontation Clause is not implicated.

Similar to Bryant, where the Supreme Court found that the statements of a mortally wounded

victim identifying defendant to police officers were not testimonial, the same is true here. 562 U.S.

360. Because the state court’s rejection of Petitioner’s Confrontation Clause claim was not an

unreasonable application of Supreme Court precedent, the Court denies relief on this claim.

C. Ground Three: Extended Sentence

Petitioner next argues that his trial and appellate counsel were ineffective in failing to

challenge his extended sentence of thirty-five years, when the facts underlying the increased

sentence were never decided upon by the jury. Petitioner relies on Apprendi v. New Jersey, 530

U.S. 466 (2000), and similar cases, for the proposition that the extended sentence violated his

constitutional rights. Petitioner raised this as a direct claim below, but failed to raise it in the

context of ineffective assistance of counsel. To the extent the claim is unexhausted, the Court

finds the claim meritless.

As an initial matter, the record reveals that counsel did object to Petitioner receiving an

extended term sentence. During the hearing on the State’s motion for an extended term, counsel

argued that the substantial penalties associated with convictions of aggravated assault and robbery

should be enough for the court to deny an extended term. ECF No. 12-12 at 9. During that hearing,

the judge found that Petitioner was eligible for an extended term sentence pursuant to N.J. Stat.

Ann. § 2C:44-3(a) as a persistent offender, as he had two prior convictions within ten years of the

date of the crime for which he was sentenced. See ECF No. 12-12 at 16. A copy of Petitioner’s

court history verifies that he was convicted of numerous offenses as an adult prior to the offense

committed here. See ECF No. 12-14 at 10–13. Thus, under N.J. Stat. Ann. § 2C:43-7(a)(2),

Petitioner was eligible for an extended sentence of 20 years to life imprisonment, on his first degree

robbery conviction. The statute reads:

[A] person who has been convicted of a crime shall be sentenced, to

an extended term of imprisonment, as follows . . . [e]xcept for the

crime of murder . . . in the case of a crime of the first degree, for a

specific term of years which shall be fixed by the court and shall be

between 20 years and life imprisonment.

N.J. Stat. Ann. § 2C:43-7(a)(2).

Here, Petitioner was sentenced to nine years for aggravated assault (second degree) and a

concurrent term of thirty-five years for robbery (first degree). See ECF No. 12-16. Petitioner

argues that the sentence is unconstitutional under Apprendi. In Apprendi, the Supreme Court held

that, under the Sixth Amendment, “any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 489. Blakely v. Washington clarified Apprendi, holding that a judge-imposed

sentence in the context of a jury trial that increases the penalty beyond the statutory maximum

must be based upon facts found by the jury beyond a reasonable doubt. 542 U.S. 296, 303–04

(2004). Here, however, the sentence did not go beyond the statutory maximum; Petitioner was

eligible for an extended term of twenty years to life imprisonment, and only received a sentence

of thirty-five years. In fact, the judge, during the extended term sentencing hearing, articulated

that Petitioner would receive a lower sentence because “there is an element of keeping sentences

in proportion here between this defendant and the other defendants.” ECF No. 12-12 at 18. While

the judge did also assess various aggravating factors, such as the depraved nature of the offense,

the risk that Petitioner would commit another offense, his extensive prior criminal record, and the

need to deter Petitioner (see N.J. Stat. Ann. § 2C:44-1), the sentence was still well-within the

prescribed statutory maximum.

Further, the Court finds — as did the Appellate Division when Petitioner raised this claim

on direct appeal — that there was sufficient evidence in the record for the judge to apply those

specific aggravating factors. Therefore, given that counsel did object to the extended sentence,

and given that the sentence falls within the statutory range under New Jersey law, the Court does

not find that counsel was deficient under Strickland in failing to object to the sentence.3 Further,

Petitioner has not shown to a reasonable probability that the judge would have shortened the

sentence, had counsel raised further objections. As such, this claim for habeas relief is denied.

3 Petitioner also appears to argue that the judge considered his juvenile record in imposing an

extended-term sentence. The record reveals that during the extended-term sentencing hearing, the

State specifically differentiated between Petitioner’s juvenile and adult record, indicating there

was enough in his adult record to make him eligible for an extended-term. ECF No. 12-12 at 6–7.

The only time the judge mentioned his juvenile record was when referencing aggravating

sentencing factor number three, the risk that Petitioner would commit another offense, which has

no bearing on whether Petitioner qualified for an extended sentence under N.J. Stat. Ann. § 2C:43-

7(a)(2).

D. Ground Four: Brady claim

In Petitioner’s final claim for habeas relief, he argues that his trial and appellate counsel

were deficient in failing to challenge the State’s violation of Brady v. Maryland, 373 U.S. 83

(1963). Similar to his first argument, Petitioner appears to allege that the Paterson Police

Department tampered with evidence by returning $60.00 to the victim, but because they never

turned over a copy of the detective’s supplemental notes (referenced in ground one), Petitioner

never had an opportunity to discredit the officers about their misconduct. See ECF No. 13 at 15–

17. Once again, this claim was not raised below, but the Court finds the claim meritless and

dismisses it on the merits under 28 U.S.C. § 2254(b)(2).

Under Brady, the State bears an “affirmative duty to disclose [material] evidence favorable

to a defendant.” Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady, 373 U.S. 83.)

“[E]vidence is material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” United States v.

Bagley, 473 U.S. 667, 682 (1985). In Strickler v. Greene, the Supreme Court clarified that “[t]here

are three components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” 527

U.S. 263, 281–82 (1999).

Petitioner has failed to show that he was prejudiced by his counsel’s failure to raise a claim

under Brady regarding the State’s failure to turn over the detective’s supplemental notes. As a

preliminary matter, the Court is not convinced that the State committed a Brady violation.

Petitioner points to what he claims are a detective’s supplemental notes, discussed in ground one,

above, which state that “[t]he victim was given $60.00 in cash from the amount recovered from

Mr. Primus. The additional $11.00 was tagged under property tag #31365.” ECF No. 13 at 21. A

true Brady violation, however, requires, among other things, that the evidence be favorable to the

accused and that prejudice ensue from the failure to turn over the evidence. Here, it is not evident

to the Court how the notes would have been favorable to Petitioner, nor how failure to turn over

the notes resulted in prejudice to Petitioner.4 Additionally, Petitioner has not demonstrated that

he was prejudiced by his counsel’s failure to raise a Brady claim, as required under the second

prong of Strickland. Petitioner has provided no evidence that there is a reasonable probability that

the outcome of his case would have been different had the detective’s supplemental notes been

provided to the defense. The notes merely indicate that money was returned to the victim; the

Court cannot perceive how such evidence would have helped Petitioner’s case. Insofar as

Petitioner has failed to demonstrate a violation under Strickland, the Court denies habeas relief on

this claim.

IV. CERTIFICATE OF APPEALABILITY

Under 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas

proceeding where that petitioner’s detention arises out of his state court conviction unless he has

“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s resolution

of his constitutional claims or that jurists could conclude that the issues presented here are adequate

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Because jurists of reason would not disagree with this Court’s conclusion that Petitioner has failed

4 Petitioner has also failed to explain when he ultimately received the detective’s supplemental

notes. He appears to state that they were never handed over to the defense, yet he attaches them

to the instant Petition. The Court will presume the notes were provided to Petitioner at some point

after the conclusion of his trial.

to make a substantial showing of the denial of a constitutional right, Petitioner’s habeas petition is

inadequate to deserve encouragement to proceed further. As such, a certificate of appealability is

denied.

V. CONCLUSION

For the reasons stated above, Petitioner’s Amended Petition for habeas relief is DENIED

and Petitioner is DENIED a certificate of appealability. An appropriate order follows.

Dated: March 15, 2021 CA Ee

CLAIRE C. CECCHI, U.S.D.J.

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