State v. Scott, DOCKET NO. A-3107-16T4

• Court: Superior Court of New Jersey
• Writing for the Court: PER CURIAM
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES H. SCOTT, Defendant-Appellant.
• Decision Date: 10 May 2019
• Docket Number: DOCKET NO. A-3107-16T4

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES H. SCOTT, Defendant-Appellant.

DOCKET NO. A-3107-16T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted October 24, 2018
May 10, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Koblitz and Ostrer.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-05-0414.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael James Confusione, Designated Counsel; William P. Welaj, on the brief).

Michael A. Monahan, Acting Union County Prosecutor, attorney for respondent (James Colin Brady, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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Defendant James H. Scott appeals from a January 3, 2017 order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). He collaterally challenges his convictions for multiple counts of first-degree robbery and related firearms offenses arising from four robberies involving multiple victims between April 24 and May 17, 2003.¹ Defendant was also convicted of separate possessory firearms offenses committed the day he was arrested, May 20, 2003. He received an aggregate sentence of forty-three years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, including consecutive terms of eighteen, fifteen, and ten years for robbery counts relating to three of the incidents.

Defendant contends he received ineffective assistance of counsel because his trial attorney did not file a pre-trial motion to sever the counts related to the five separate incidents; and his appellate attorney did not raise the issue on appeal. We disagree and affirm. We are not convinced that a severance motion would have succeeded, particularly given the prosecution, albeit unsuccessful, of a conspiracy count that encompassed all four robberies. Furthermore,

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defendant has not demonstrated that, even if his attorneys were deficient, he suffered prejudice as a result.

I.

The PCR court's order follows a remand from the Supreme Court. State v. Scott (Scott III), 225 N.J. 337 (2016). The PCR court initially denied defendant's petition without oral argument. We affirmed that decision substantially for the reasons the judge set forth in a written decision. State v. Scott (Scott II), No. A-3951-13 (App. Div. Jan. 19, 2016), slip op. at 4-5. We agreed that a severance motion would not have succeeded because, in a trial for any of the five incidents, evidence as to the others would have been admissible under N.J.R.E. 404(b) as proof of a charged conspiracy. Scott II, slip op. at 5. It did not matter, for purposes of our ineffective-assistance-of-counsel analysis, that the jury ultimately acquitted defendant of the conspiracy count. Ibid. We also held that the PCR correctly dispensed with oral argument. Ibid. On that point alone, the Supreme Court summarily reversed and remanded for oral argument, pursuant to State v. Parker, 212 N.J. 269 (2012). Scott III, 212 N.J. at 337.

At the subsequent oral argument, defendant reprised his previous written arguments. The PCR court was unpersuaded. Citing State v. Pitts, 116 N.J. 580,

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601-02 (1992), the court observed that, although a party may seek relief from prejudicial joinder under Rule 3:15-2, no prejudice exists if, in a trial on a single charge, evidence of the other charges would be admissible under N.J.R.E. 404(b) and the four-prong Cofield test. See State v. Cofield, 127 N.J. 328, 338 (1992) (holding evidence of other crimes and wrongs is admissible if "relevant to a material issue"; "similar in kind and reasonably close in time to the charged offense"; "clear and convincing"; and its apparent prejudice does not outweigh its probative value). The court concluded that a severance motion would have failed because evidence of the robberies would have met the Cofield test.

The court noted:

[T]he defendants committed a series of nighttime robberies over the course of a month in the nearby towns of Union and Linden using the same vehicle, the same weapon, the same clothing, and the same modus operandi. The defendant's theory of the case was that he didn't participate in any of the crimes charged.

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