                                NOT FOR PUBLICATION WITHOUT THE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-1255-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GARY SUTTLE, a/k/a BOBBY
B. SUTTLE, and GARY WILLIAMS,

     Defendant-Appellant.
_______________________________

                    Submitted January 8, 2019 – Decided January 22, 2019

                    Before Judges Fisher and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 04-10-1327.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel, on
                    the brief).

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

PER CURIAM
      Defendant appeals the denial of his post-conviction relief (PCR) petition.

We find no error and affirm.

      Lois Zukowitz was murdered in her Elizabeth apartment on March 11,

2004. Police investigation led to defendant, who was charged with first-degree

murder, N.J.S.A. 2C:11-3(a), and possession of a weapon (a hammer) for an

unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant's first trial, which occurred

in April 2008, produced an acquittal on the weapons offense and a hung jury on

the murder charge. A second trial in July 2008 resulted in defendant's conviction

of first-degree murder and a fifty-five-year prison term. Defendant appealed,

and we reversed and remanded for a new trial. State v. Suttle, No. A-2417-08

(App. Div. June 10, 2011). At a third trial, which occurred in June and July

2012, defendant was again convicted of first-degree murder, and, in August

2012, he was again sentenced to a fifty-five-year prison term subject to the No

Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, and we affirmed

the conviction and the fifty-five-year NERA prison term but remanded for

amendment of the judgment to eliminate a separate thirty-year parole

disqualifier. State v. Suttle, No. A-1692-12 (App. Div. Feb. 2, 2016).

      Defendant filed a PCR petition in July 2016, arguing attorney

ineffectiveness. The PCR judge denied relief, and defendant appeals, arguing


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the PCR judge erroneously denied relief without conducting an evidentiary

hearing. We find insufficient merit in defendant's arguments to warrant further

discussion in a written opinion. R. 2:11-3(e)(2). We add only the following

comments.

      To    put   defendant's   ineffectiveness   claims   into   context,     some

understanding of the evidence adduced during his third trial is warranted. The

State put on witnesses and offered evidence that linked defendant to Lois's

murder. The State showed that, at sometime after 10:00 p.m., on March 11,

2004, Lois's neighbor heard: her scream; a male voice command her to "shut

up"; and noises that suggested someone was being punched. The neighbor called

9-1-1 sometime after 11:00 p.m., and by 11:25 p.m., police arrived, finding Lois

dead and her body face down in a pool of blood. A bloody towel was found, as

well as numerous blood-stained areas in the apartment. Near Lois's body, police

observed a bloody impression from a Reebok sneaker. Lois's bedroom and

kitchen appeared to have been ransacked.

      Testimony was offered to show Lois was struck numerous times with a

blunt instrument. Police found on her bed a black rubber-handled claw hammer

wrapped in a plastic bag. A small clump of hair was found on the claw end;

blood was found on the striking end. No fingerprints were found on the hammer,


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but a mixture of DNA was found on the hammer's handle. The State offered

testimony that Lois could not be excluded as a potential contributor to that DNA

mixture and that the other DNA probably came from a female. Defendant was

excluded as a contributor to that DNA.

      In the apartment, police found a black jacket with a fur collar. The jacket

contained a set of keys. Investigators later determined that a key in the jacket

was for the Mravlag Manor apartment of Joseph Lopez and his mother, Nilda

Vargas. Vargas was defendant's girlfriend at the time. When police entered the

Lopez-Vargas apartment, a partially-clothed defendant appeared from one of the

rooms. Lopez went to get him some clothes and when Lopez returned with a

pair of Reebok sneakers, defendant said to him, "[n]o, not those shoes." Aware

of the shoe print left in Lois's apartment, police became suspicious about

defendant's comment to Lopez; they obtained a search warrant for the apartment

and seized the Reeboks.     No blood was found on them, but, at trial, the

prosecution offered evidence that the bloody shoe prints left at the crime scene

were made by Reeboks.

      In his testimony, Lopez confirmed the jacket was his and the keys

belonged to defendant.     Both Lopez and Vargas provided testimony that

suggested defendant left the apartment on the day of Lois's murder and did not


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                                         4
return until March 17, 2004. According to Lopez, when defendant departed he

was in possession of Lopez's jacket but when he returned, he had neither the

jacket nor his keys. Lopez testified that when defendant returned after the

week's absence, he said he had been "locked up" and that the jacket was taken

at the jail.

       The State called Arthur Barber, who testified that defendant told him "he

had gotten himself in a little bit of trouble and he needed to get out of town."

Barber also testified that defendant admitted to killing a "white woman" but that

he did not mean to do it.

       The State also called two of Lois's neighbors who testified they saw Lois

on the afternoon of her murder with an African-American man wearing a black

coat with a fur hood. Two other women testified they had accompanied Lois on

separate occasions to buy heroin from an African-American man who lived in

Mravlag Manor. In addition, the State offered testimony that police obtained

statements from others: Corrine Hartley, and her brother James Hartley, as well

as Deborah Silverstein, who was a friend of Lois and who stated she had

observed James Hartley with Lois in the weeks leading up to the murder.

       Defendant called Corrine Hartley to testify. She testified that she did not

remember giving a statement to the police. But the statement she gave was read


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                                        5
to the jury during a detective's testimony and included information such as:

shortly after the murder her brother James gave her a bag of dirty clothes, which

included a pair of bloody jeans; James owned sneakers that were "either Reebok,

or Nike or Avia"; and James was often in the building where Lois lived.

Evidence also suggested that James attended the same methadone clinic as Lois.

      In arguing ineffectiveness, defendant contends his trial attorney failed to

conduct a proper investigation which, in his view, required that Corrine Hartley,

James Hartley, and Deborah Silverstein be interviewed. He also argues that his

trial attorney should have obtained DNA from them to determine whether it

matched the DNA on the hammer. And he argues that his trial attorney failed

to adequately cross-examine Barber. We find no merit in these arguments.

      The judge soundly rejected defendant's argument regarding the

sufficiency of counsel's pretrial investigation concerning Corrine and James

Hartley, and Deborah Silverstein:

            [Defendant] has not established what would have been
            revealed if trial counsel were to have interviewed
            the[m].    [Corrine] and [Deborah] gave recorded
            statements to the police. These were certainly available
            to the defense through discovery. [Corrine] was
            interviewed by the police, and the notes of that
            interview were presumably available to the defense
            through discovery. [James's] father was interviewed by
            the police and provided an alibi for his son.
            [Defendant] has not come forward with any information

                                                                         A-1255-17T3
                                       6
            from these witnesses that differs from that already in
            the record.

            Furthermore, both [Corrine] and [Deborah] testified at
            trial. [Corrine's] trial testimony and what appears to be
            her whole, if not a substantial portion, of her March 18,
            2014 statement were placed before the jury.
            Accordingly, all of her favorable testimony about
            [James's] purported incriminating comments and blood
            on his clothes were presented to the jury.

            [Deborah] was called as a witness during [defendant's]
            case in chief and was asked about her relationship with
            James Hartley.

            The State attempted to call [James] as a witness on
            rebuttal, but he could not be located. It is highly
            doubtful that his testimony at trial would have differed
            from his statements to the investigating officers or been
            as favorable to [defendant] as the inferences, which
            were drawn from his statements to [Corrine].

            As noted above, [defendant] has not established that an
            "interview" of these witnesses[] would have presented
            information that was either not before the jury already,
            or more favorable than the evidence presented to the
            jury.

For these reasons, the judge denied this aspect of the PCR petition. We agree

that this result was compelled by a proper application of the Strickland/Fritz

test.1



1
  Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42
(1987).
                                                                        A-1255-17T3
                                       7
      The PCR judge also properly rejected defendant's contentions regarding

trial counsel's decision not to obtain DNA samples from Corrine and James

Hartley and Deborah Silverstein. As the judge recognized, the prosecution

provided testimony that the DNA belonged to a female, thus exculpating him

from that link to the hammer; for the same reason it exculpated James Hartley.

But, rather than run the risk that samples from the other potential targets of

defendant's third-party guilt theory would exculpate them as well, defense

counsel "used the lack of DNA testing," as the PCR judge said, "skillfully to his

advantage," pointing out a number of passages from defense counsel's

summation along those lines. Again, because counsel took a reasonable tactical

approach to this circumstance, Strickland, 466 U.S. at 689, defendant was unable

to present a prima facie case of ineffectiveness.

      And lastly, we agree with the PCR judge's analysis of the sufficiency of

the Barber cross-examination. The nature and extent of cross-examination are

matters that fall within the "broad zone of attorney discretion."       State v.

Hightower, 120 N.J. 378, 432 (1990). But, even if we were to second guess trial

counsel in this regard, the only fair conclusion is that counsel's cross-

examination was rigorous and productive. Barber testified that defendant's

incriminating statements were made to him around Labor Day 2004, yet counsel


                                                                         A-1255-17T3
                                        8
elicited through cross-examination testimony that revealed such a claim was

false because defendant was incarcerated from March 24, 2004 until January

2005; Barber had no opportunity to speak with defendant at the time he claimed

defendant made incriminating statements. This and other inconsistencies in

Barber's testimony were revealed to great effect not only during cross-

examination but during counsel's summation as well.

      Affirmed.




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