# State of New Jersey v. Brian R. Auxer

> New Jersey Superior Court Appellate Division · July 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10473001

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** July 18, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10473001

## How later opinions describe it (automated extraction)

- rejecting defendant's ineffective assistance of counsel argument when jurors were thoroughly questioned and defense counsel did not use any peremptory challenges
- explaining that if "no error was prejudicial and the trial was fair," the theory of cumulative error does not apply

## Opinion text

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1676-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN R. AUXER,

Defendant-Appellant.
_______________________

Argued May 13, 2024 – Decided July 18, 2024

Before Judges Gilson and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 16-08-1933.

David J. Reich, Designated Counsel, argued the cause
for appellant (Jennifer Nicole Sellitti, Public Defender,
attorney; David J. Reich, on the briefs).

Linda Anne Shashoua, Assistant Prosecutor, argued the
cause for respondent (William E. Reynolds, Atlantic
County Prosecutor, attorney; John J. Santoliquido,
Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

A jury convicted defendant Brian Auxer of second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1), and he was sentenced to eight years in prison

with periods of parole ineligibility and parole supervision as prescribed by the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from his

conviction. He also contends that his prior counsel provided ineffective

assistance. Having reviewed all his arguments in light of the record and law,

we reject them and affirm his conviction.

I.

In August 2016, when defendant was twenty-nine years old, he was

charged with physically assaulting G.P. (Gloria), a then-sixty-four-year-old

woman.1 We discern the facts from the trial record. At trial, the State presented

testimony from six witnesses: Gloria, Dr. Brett Greenfield, two of Gloria's

neighbors, and two responding police officers. The State also introduced

various exhibits, including Gloria's medical records from her treatment after the

1
We use initials and a fictitious name for the victim to protect her privacy
interests. See R. 1:38-3(c)(12).
A-1676-22
2
assault. Defendant elected not to testify, and he called one witness: Linda

Auxer (Linda), his mother.2

Gloria owned a home in Absecon. In early 2015, she allowed Linda, who

was then her coworker, to live with her. Several weeks later, defendant lost his

job and moved in with Gloria and Linda.

Gloria testified that on the evening of July 3, 2016, she and Linda returned

home after shopping. As Gloria pulled into the driveway, she saw defendant

sitting on the porch with the living room windows open and the air conditioner

running. Gloria explained that defendant had previously opened the windows

while the air conditioner was running. Gloria made a comment to Linda, and

Linda went to speak with defendant.

As Gloria was smoking a cigarette and calling her sister in the garage, she

heard Linda and defendant arguing. Shortly thereafter, Linda left the home to

run an errand. Several minutes later, as Gloria was walking by defendant in an

area near the kitchen, defendant asked her where his mother was. Gloria told

defendant she did not know, and defendant accused Gloria of lying. Gloria then

walked upstairs, and defendant followed her. When Gloria got to her bedroom,

2
Because Linda Auxer shares a last name with defendant, we use her first name
to avoid confusion. In doing so, we intend no disrespect.
A-1676-22
3
she tried to close the door, but defendant pushed it open. Gloria testified

defendant then began to yell at her and hit her several times, including hitting

her repeatedly on the right side of her rib cage. Gloria wound up on the floor

with a bloody nose and cuts on her face.

After defendant left her, Gloria got up and went to her next-door

neighbors' house. The neighbors testified that Gloria appeared at their home

bleeding profusely from cuts on her face and told them that defendant had

attacked her. One of the neighbors then called 911.

Several police officers and an ambulance responded. Gloria reported the

assault to the officers, and she was taken to the hospital.

The police officers then went to Gloria's house, where they found the front

door locked and heard loud music being played inside the home. The officers

entered the house through a rear sliding door. After announcing their presence,

the officers searched the home but initially found no one. An officer then went

to look in the attic and, on the way, saw defendant standing near the kitchen.

Defendant was arrested.

At the hospital, Gloria was treated by Dr. Greenfield. At trial, Dr.

Greenfield testified that he ordered a computed axial tomography (CAT) scan

of Gloria's head because of the injuries to her face that he observed. The CAT

A-1676-22
4
scan showed that Gloria had a broken nose. Dr. Greenfield also testified that

Gloria had a fractured rib. Additionally, the State entered into evidence the

hospital records of Gloria's treatment at the hospital, including the CAT scan.

Testifying for the defense, Linda stated that on the morning of July 3,

2016, Gloria had shown her a bruise on her chest and explained that she got the

bruise by leaning on a table at work. In rebuttal, the State recalled Dr.

Greenfield, who testified that Gloria had no bruises on her chest when he later

examined her at the hospital.

After hearing the testimony and considering the evidence, the jury

convicted defendant of second-degree aggravated assault. Defendant was

thereafter sentenced to eight years in prison subject to NERA.

Defendant retained new counsel and has subsequently certified that he

directed his counsel to appeal both his conviction and sentence. His initial

appellate counsel appealed only the sentence. We heard that appeal on January

9, 2019, at an excessive sentencing hearing. That same day, we affirmed

defendant's sentence. State v. Auxer, No. A-4942-17 (App. Div. Jan. 9, 2019).

Approximately a year later, in January 2020, defendant, representing

himself, filed papers seeking to appeal his conviction and alleging that both his

trial and appellate counsel had been ineffective. The Law Division treated that

A-1676-22
5
submission as a petition for post-conviction relief (PCR). Defendant was then

assigned counsel, who filed additional papers on defendant's behalf. After

hearing oral argument, on June 3, 2021, the court denied defendant's presumed

PCR petition without an evidentiary hearing.

Defendant appealed. On November 7, 2022, we reversed the January 3,

2021 order and permitted defendant to file a direct appeal of his conviction.

State v. Auxer, No. A-3636-20 (App. Div. Nov. 7, 2022). We accepted

defendant's unrebutted representation that he had directed his first appellate

counsel to appeal his conviction. We, therefore, did not decide or address

defendant's claims of ineffective assistance of counsel. Instead, we allowed

defendant to raise his claims of ineffective assistance of counsel when he

appealed his conviction.

This appeal then followed. Defendant also moved for bail pending this

appeal. We granted that motion and directed the trial court to release defendant

on bail while this appeal was being considered. State v. Auxer, No. A-1676-22

(App. Div. July 14, 2023).

II.

On this appeal, defendant directly appeals from his aggravated assault

conviction. He also contends that he is entitled to PCR because his trial and

A-1676-22
6
appellate counsel provided ineffective assistance. In that regard, through his

counsel, defendant makes seven arguments, which he articulates as follows:

POINT I: THE TRIAL COURT COMMITTED
HARMFUL ERROR IN ALLOWING THE
ADMISSION INTO EVIDENCE OF A MORE THAN
[TEN]-YEAR-OLD CONVICTION IN THE
ABSENCE OF ANY BASIS FOR CONCLUDING
THAT THE PRESUMPTION OF INADMISSIBILITY
HAD BEEN REBUTTED

POINT II: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO RETAIN A MEDICAL EXPERT TO
ASSESS WHETHER SERIOUS BODILY INJURIES
HAD BEEN INFLICTED UPON [GLORIA]

POINT III: THE COURT COMMITTED PLAIN
ERROR IN ALLOWING HEARSAY TESTIMONY
THAT A CAT SCAN OF [GLORIA] INDICATED
THAT SHE HAD A COMMINUTED NASAL BONE
FRACTURE

POINT IV: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO OBJECT TO HEARSAY
TESTIMONY THAT A CAT SCAN OF [GLORIA]
INDICATED THAT SHE HAD A COMMINUTED
NASAL BONE FRACTURE

POINT V: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO OBJECT TO THE ASSISTANT
PROSECUTOR'S MISCONDUCT

POINT VI: TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO MAKE SUFFICIENT USE OF
AVAILABLE PEREMPTORY CHALLENGES

A-1676-22
7
POINT VII: A REVERSAL IS WARRANTED IN
VIEW OF THE CUMULATIVE ERRORS
COMMITTED

Defendant has also filed a pro se supplemental brief in which he makes

the following four arguments:

POINT I: Claim of ineffective assistance of counsel
whereupon trial counsel failed to use peremptory
challenges to excuse biased jurors of which violated my
right to a fair and impartial trial. Appellate as well as
[PCR] counsel failed to investigate Voir[] Dire issues
in wake of such.

[POINT] II: Damon Tyner's continued participation as
Head Prosecutor [overseeing] my case after
transitioning from . . . being my presiding judge
violates not only the current conflict of interest laws
under N.J.S.A[.] 52:13D but also the judicial [canons],
court rules, and most importantly [RPC] 1.12(a).

POINT III: Verifiable direct contributing factors to
prove ineffective assistance of counsel and a perpetual
pattern of gross neglect ([RPC] 1.1) by prior counsel.

POINT IV: Failure of the Atlantic County Superior
[C]ourt to produce a [s]tatistically valid random cross[-
]section from the community of potential jurors.

Three of defendant's eleven arguments directly challenge his conviction.

We will address those arguments first. Most of defendant's other arguments

raise claims of ineffective assistance of counsel, and we will address those

A-1676-22
8
contentions second. Finally, we will address defendant's contentions concerning

Damon Tyner and his cumulative errors argument.

III.

Defendant contends through his counsel that the trial court committed two

errors that warrant reversal of his conviction. First, he argues that the trial court

erred in granting the State's motion to use a prior conviction on cross-

examination if defendant elected to testify. Second, he asserts that the trial court

committed plain error in allowing Dr. Greenfield to testify that the CAT scan

revealed that Gloria had suffered a fracture of her nose. In his pro se brief,

defendant also asserts that the jury selection process did not produce a random

selection of his peers.

Appellate courts defer to trial courts' evidentiary rulings absent an abuse

of discretion. State v. Garcia, 245 N.J. 412, 430 (2021); State v. Higgs, 253 N.J.

333, 367 (2023) (explaining that a trial court's admission of a defendant's prior

conviction is reviewed for an abuse of discretion). We will "not substitute [our]

judgment unless the evidentiary ruling is 'so wide of the mark' that it constitutes

'a clear error in judgment.'" Garcia, 245 N.J. at 430 (quoting State v. Medina,

242 N.J. 397, 412 (2020)).

A-1676-22
9
When an argument was not raised with the trial court, we review the issue

for plain error. See R. 2:10-2; State v. Singh, 245 N.J. 1, 13 (2021) (explaining

that "[w]hen a defendant does not object to an alleged error at trial, such error

is reviewed under the plain error standard"). "[A]n unchallenged error

constitutes plain error if it was 'clearly capable of producing an unjust result,'"

Singh, 245 N.J. at 13 (quoting R. 2:10-2), and "raise[s] 'a reasonable doubt . . .

as to whether the error led the jury to a result it otherwise might not have

reached,'" State v. Funderburg, 225 N.J. 66, 79 (2016) (omission in original)

(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). When applying the plain

error standard, courts evaluate the error "in light of the overall strength of the

State's case." State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (quoting State

v. Galicia, 210 N.J. 364, 388 (2012)).

1. The Admission of Defendant's Prior Conviction.

N.J.R.E. 609 governs the admissibility of prior convictions for the purpose

of impeaching a witness. If more than ten years "have passed since the

conviction or the witness's release from confinement for the conviction,

whichever is later, the conviction 'is admissible only if the court determines that

its probative value outweighs its prejudicial effect.'" Higgs, 253 N.J. at 368

(quoting N.J.R.E. 609(b)(1)). The party seeking to introduce the conviction

A-1676-22
10
must show that its probative value outweighs its prejudicial effect. Ibid. In

making an admissibility determination, the trial court can consider (1) "whether

there are intervening convictions for crimes or offenses, and if so, the number,

nature, and seriousness of those crimes or offenses," (2) "whether the conviction

involved a crime of dishonesty, lack of veracity or fraud," (3) "how remote the

conviction is in time," and (4) "the seriousness of the crime." State v. R.J.M.,

453 N.J. Super. 261, 269 (App. Div. 2018) (quoting N.J.R.E. 609(b)(2)). "The

key to exclusion is remoteness," which "cannot ordinarily be determined by the

passage of time alone." State v. Murphy, 412 N.J. Super. 553, 564 (App. Div.

2010) (quoting State v. Sands, 76 N.J. 127, 144 (1978)).

If a court erroneously rules that evidence of a defendant's prior conviction

is admissible, and defendant thereafter chooses not to testify, that ruling may

constitute reversible error unless the State's evidence at trial can fairly be

described as "overwhelming." R.J.M., 453 N.J. Super. at 271. In R.J.M., we

held that a trial court's erroneous admission of a conviction, which was from

more than ten years before the defendant's trial, was reversible error because in

that case, the issues at trial "hinged on the jury's evaluation of witness

credibility," the "testimony of the State's witnesses was contradictory in some

A-1676-22
11
respects," and security videos did not "entirely support [the State's witnesses']

version of events." Id. at 270.

In other cases, where a defendant chooses to testify and that testimony

would have been inconsistent with other testimony, the erroneous admission of

a prior conviction may also be grounds for reversal. See Murphy, 412 N.J.

Super. at 566. In Murphy, we held that because "the probative value of [the

defendant's prior conviction] was quite slight" and the other witnesses'

testimony was not "inherently more believable than the version [of events]

defendant offered," admission of the evidence of the prior conviction was

reversible error because it "had the clear capacity to serve as an unfair tiebreaker

that handed the State a victory it might otherwise not have achieved ." Ibid.

At the close of the State's case in defendant's trial, the State moved for

permission to use a prior conviction to impeach defendant if he elected to testify.

In that regard, the State sought to admit evidence that in February 2007,

defendant had been convicted of third-degree terroristic threats. The State

acknowledged that the conviction should be sanitized and requested that , if

defendant elected to testify, the jury should be informed that he had previously

been convicted of a third-degree felony and had been sentenced to two years of

probation with fifty hours of community service. The State went on to argue

A-1676-22
12
that the probative value of the 2007 conviction was not outweighed by its

prejudicial effect. Defense counsel responded by objecting and arguing that the

prejudicial effect of allowing the 2007 conviction would be "extreme" and the

conviction itself had little probative value.

The trial court analyzed the conviction under N.J.R.E. 609(b) as a prior

conviction that occurred more than ten years before trial. The court then quoted

the Rule, focusing on the determination of whether the 2007 conviction would

have more probative value than prejudicial effect. The trial court found that the

State had met its burden because the prior conviction had more probative value

than prejudicial effect. While the court did not go into extensive detail in

making that finding, a review of the court's reasoning demonstrates that it

viewed the conviction as more probative of defendant's credibility and,

therefore, not so prejudicial that it should be excluded.

Having reviewed the trial record, we discern no reversible error in the

court's decision to allow the State to use the prior conviction if defendant

testified. In making this ruling, we also note that the State's evidence at trial

was overwhelming. Gloria explained in detail how she was assaulted. Her

testimony was corroborated by the neighbors' testimonies, as well as the medical

records and the testimony of Dr. Greenfield. Defendant explains the alternate

A-1676-22
13
version of events that he would have offered, but this version is uncorroborated

by any other testimony or evidence. So, even if the trial court had erred in

allowing the State to use defendant's 2007 conviction, there is no demonstration

that defendant's decision not to testify had the clear capacity to change the

outcome of the trial.

2. The Admission of Dr. Greenfield's Testimony About the CAT Scan.

Defendant argues that the trial court erred in admitting "hearsay

testimony" from Dr. Greenfield "that a CAT scan of [Gloria] indicated that she

had a comminuted nasal bone fracture." In that regard, defendant asserts that

the admission of Dr. Greenfield's testimony constituted plain error because Dr.

Greenfield was not the doctor who actually administered the CAT scan, and he

was not qualified as an expert.

Treating physicians are permitted to testify about their "observations,

diagnosis and treatment" even when they are not testifying as expert witnesses.

Delvecchio v. Township of Bridgewater, 224 N.J. 559, 578 (2016) (quoting

Biunno, Weisberg & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E.

701 (2015)). In that regard, our Supreme Court has explained:

Our courts have long permitted treating physicians to
offer medical testimony regarding the diagnosis and
treatment of their patients, pursuant to N.J.R.E. 701.
That rule authorizes a court to admit the "testimony in

A-1676-22
14
the form of opinions or inferences" of a lay witness, if
the testimony "(a) is rationally based on the perception
of the witness and (b) will assist in understanding [the
witness's] testimony or in determining a fact in issue."

[Id. at 576 (quoting N.J.R.E. 701).]

Dr. Greenfield testified that he treated Gloria when she arrived at the

hospital on June 3, 2016. He then testified as to his evaluation of the tests he

ordered and the course of the treatment. He was not testifying as an expert;

rather, he was testifying as the treating physician. His testimony, including his

testimony concerning the CAT scan, was rationally based on his perceptions as

a treating physician and assisted the jury in understanding the injuries Gloria

suffered. Accordingly, Dr. Greenfield's testimony met the requirements of

N.J.R.E. 701, and the trial court did not abuse its discretion in allowing that

testimony.

Moreover, because there was no objection at trial to Dr. Greenfield's

testimony, defendant would have to show plain error to warrant a reversal of his

conviction. The record simply does not support a showing of plain error.

3. The Jury Pool.

Defendant argues in his pro se brief that the jury selection process did not

produce a random sample of his peers because certain zip codes were omitted ,

and the result was not a "statistically valid random result." This issue was not

A-1676-22
15
raised during the jury selection process, and, therefore, we evaluate it for plain

error.

Criminal defendants are guaranteed the "right to trial by a jury drawn from

a representative cross-section of the community." State v. Andujar, 247 N.J.

275, 299-300 (2021) (quoting State v. Gilmore, 103 N.J. 508, 524 (1986)).

"Jury-selection processes are presumed valid[,] and a defendant challenging a

jury-selection process 'must show by a preponderance of the believable evidence

that the attacked process is fatally flawed.'" State v. Dangcil, 248 N.J. 114, 141

(2021) (quoting State v. Long, 204 N.J. Super. 469, 485 (Law Div. 1985)). To

bring a challenge, a defendant must (1) "identify a constitutionally-cognizable

group," (2) "prove substantial underrepresentation over a significant period of

time," and (3) "show discriminatory purpose either by the strength of his [or her]

statistical showing or by showing the use of racially non-neutral selection

procedures to support the inference of discrimination raised by substantial

underrepresentation." Ibid. (quoting State v. Dixon, 125 N.J. 223, 232 (1991)).

Defendant has not shown that the jury selection process was flawed. In

that regard, defendant has not identified a group that was discriminated against,

nor has he shown any discriminatory intent. Instead, he argues that the selection

process was rushed, but he does not support that contention with any evidence.

A-1676-22
16
Accordingly, we discern no reversible error in the jury selection process that

would warrant vacating defendant's conviction.

IV.

To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-prong Strickland test: (1) "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment," and (2) "the deficient performance prejudiced the defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,

58 (1987) (adopting the Strickland two-prong test in New Jersey). Under prong

one, a defendant must establish that "counsel's representation fell below an

objective standard of reasonableness." Strickland, 466 U.S. at 688. Under prong

two, a defendant must demonstrate "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

1. The Failure to Retain a Medical Expert.

Defendant asserts that his trial counsel was ineffective in failing to retain

a medical expert to assess whether Gloria had serious bodily injuries. In support

of that contention, defendant certified in 2020 that he requested his trial counsel

to retain a medical expert to review Gloria's injuries, but trial counsel failed to

A-1676-22
17
do so. Defendant argues that a medical expert may have been able to opine that

Gloria's injuries "were not sufficiently severe or permanent to meet the statutory

definition of serious bodily injury associated with second-degree aggravated

assault," and that if such testimony had been offered, he may have been acquitted

or convicted of a lesser-included offense.

When a defendant claims that his counsel was ineffective in failing to

retain an expert to rebut the State's expert, the defendant must offer some

showing that an "independent expert[] would have reached materially different

conclusions." State v. Marshall, 148 N.J. 89, 211 (1997). Defendant speculates

on the testimony a defense expert may have been able to offer, but he has not

made any showing that a defense expert would have been able to opine that

Gloria's injuries were less serious than what Dr. Greenfield testified about at

trial. In short, defendant makes a bald contention without any factual support.

Accordingly, defendant has not shown that trial counsel's failure to retain a

medical expert constituted ineffective assistance of counsel.

2. The Failure to Object to the Testimony About the CAT Scan.

Defendant also argues that his trial counsel's failure to object to Dr.

Greenfield's testimony about the CAT scan constituted ineffective assistance of

counsel. We have already ruled that the trial court did not err in admitting Dr.

A-1676-22
18
Greenfield's testimony, and, therefore, defendant cannot prove either prong of

the Strickland test.

3. The Failure to Object to Remarks by the Prosecutor.

Defendant argues that the prosecutor "repeatedly brought up points [that]

were transparently calculated to elicit sympathy for [Gloria] and hostility to

[defendant]." In support of that argument, defendant points to various remarks

the prosecutor made in the opening statement and summation. He then contends

that his trial counsel's failure to object to those remarks constituted ineffective

assistance.

Prosecutors in criminal cases are expected to make "vigorous and

forceful" arguments to juries. State v. Frost, 158 N.J. 76, 82 (1999); see also

Garcia, 245 N.J. at 435. Nevertheless, a prosecutor's opening statement to the

jury "'should provide an outline or roadmap of the State's case' and 'should be

limited to a general recital of what the State expects, in good faith, to prove by

competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014)

(emphasis omitted) (quoting State v. Walden, 370 N.J. Super. 549, 558 (App.

Div. 2004)). Likewise, prosecutors are "obliged to confine summation remarks

to the evidence in the case and only those reasonable inferences that may be

A-1676-22
19
drawn from that evidence." State v. McNeil-Thomas, 238 N.J. 256, 283 (2019)

(LaVecchia, J., dissenting).

Defendant now objects to the prosecutor's comments concerning (1)

Gloria's decision to allow defendant and his mother to live at her home, and (2)

Gloria's fear of defendant during and after the assault. A review of the

prosecutor's comments in the totality of the circumstances of this case discloses

neither a prima facie showing of ineffective assistance of counsel nor reversible

error. The prosecutor's comments concerning Gloria allowing defendant and his

mother to live at her home were a fair summary of Gloria's subsequent

testimony. Therefore, those comments were permissible, and trial counsel was

not ineffective in failing to object to them.

The prosecutor's comments concerning what Gloria was thinking and

feeling during the assault may have been subject to objection, but they do not

constitute reversible error. Considered in the full context of defendant's trial,

those comments did not produce an unjust result. Accordingly, defendant has

failed to show that his counsel's failure to object was prejudicial.

A-1676-22
20
4. The Failure to Use All Peremptory Challenges.

Defendant also argues that his trial counsel was ineffective in not using

more peremptory challenges during the jury selection process. He contends that

several of the jurors may have been sympathetic to an assault victim.

A defendant can "strike individual jurors, without giving a reason, by

exercising peremptory challenges." Andujar, 247 N.J. at 284 (citing N.J.S.A.

2B:23-13(b)). "The 'goal of peremptory challenges is to secure an impartial

jury.'" Hitchman v. Nagy, 382 N.J. Super. 433, 444 (App. Div. 2006) (quoting

State v. DiFrisco, 137 N.J. 434, 468 (1994)). When the jury selection process

"adequate[ly] . . . ensure[d] that a fair and impartial jury was empaneled," there

is no showing of ineffective assistance of counsel constituting reversible error.

State v. Timmendequas, 161 N.J. 515, 598-601 (1999) (rejecting defendant's

ineffective assistance of counsel argument when jurors were thoroughly

questioned and defense counsel did not use any peremptory challenges).

In this matter, a review of the record establishes that the trial court

adequately questioned the jurors concerning their ability to be fair and impartial.

All the jurors impaneled testified that they would be able to view the case

impartially, and there is nothing in the record to indicate that any juror was not

A-1676-22
21
impartial. Thus, there has been no showing of ineffective assistance of counsel

for failing to use more peremptory challenges.

V.

In his pro se brief, defendant contends that the then-Atlantic County

Prosecutor Damon Tyner should have been disqualified due to a conflict of

interest because Tyner had previously been a judge and had handled defendant's

arraignment.

RPC 1.12(a) states, in relevant part, that "a lawyer shall not represent

anyone in connection with a matter in which the lawyer participated personally

and substantially as a judge . . . unless all parties to the proceedings have given

consent, confirmed in writing." RPC 1.12(b) provides that if a lawyer is

disqualified by RPC 1.12(a), then "no lawyer in a firm with which that lawyer

is associated may knowingly undertake or continue representation in the matter"

unless the lawyer is timely screened, or written notice is promptly given to the

parties. In State v. Smith, 478 N.J. Super. 52 (App. Div. 2024), we held that an

entire county prosecutor's office need not be disqualified so long as the

prosecutor who has a conflict due to a prior representation is appropriately

screened from the matter and has not shared any confidential information

learned during his or her prior involvement in the case. Id. at 64. We expressly

A-1676-22
22
noted that our holding applied to prior involvement by both assistant county

prosecutors and the county prosecutor. Ibid.

In this matter, we discern no grounds for reversing defendant's conviction

based on the prosecutor's prior service as a judge. The record discloses that

while a judge, Tyner had limited involvement in defendant's case because he

only presided over the arraignment. Moreover, there is no showing that Tyner

had any involvement in the prosecution of defendant's case once he became

county prosecutor.

VI.

Defendant also argues that "the cumulative errors committed" warrant

reversal of his conviction. As we have found no error, there are no cumulative

errors warranting reversal of defendant's conviction. See State v. Weaver, 219

N.J. 131, 155 (2014) (explaining that if "no error was prejudicial and the trial

was fair," the theory of cumulative error does not apply).

Finally, to the extent that we have not addressed any other argument made

by defendant, it is because we have concluded that those arguments lack

sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Affirmed. This court's prior order granting bail is vacated.

A-1676-22
23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10473001. Public record. Not legal advice.