                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2422-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAQUAY J. GIBBS, a/k/a
LAQUAY LIVINGSTON,
KEVIN PERRY, JOHN
GIBBS and KEVIN GIBBS,

     Defendant-Appellant.
_______________________________

                    Submitted September 16, 2019 – Decided November 19, 2019

                    Before Judges Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey,
                    Law Division, Atlantic County, Indictment No. 14-10-
                    2966.

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

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Melinda A. Harrigan, Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Laquay J. Gibbs appeals from the denial of his post-

conviction relief (PCR) petition without an evidentiary hearing. He argues on

appeal:

            POINT I

            DEFENDANT'S CLAIMS THAT HIS PLEA
            COUNSEL WAS INEFFECTIVE FOR FAILING TO
            MOVE TO DISMISS THE INDICTMENT AND FOR
            FAILING TO MAKE ANY ARGUMENT IN
            MITIGATION OF SENTENCE WERE PRIMA
            FACIE CLAIMS WHICH ENTITLED HIM TO
            POST-CONVICTION RELIEF, OR IN THE
            ALTERNATIVE TO AN EVIDENTIARY HEARING.

            POINT II

            APPELLATE COUNSEL WAS INEFFECTIVE FOR
            FAILING TO NOTICE AND RAISE ON DIRECT
            APPEAL THE TRIAL COURT'S FAILURE TO
            AFFORD    DEFENDANT   HIS  RIGHT   OF
            ALLOCUTION.

We are unpersuaded by either contention and affirm.

      Absent an evidentiary hearing, our review of the factual inferences

drawn from the record by the PCR court is de novo. State v. Blake, 444 N.J.

Super. 285, 294 (App. Div. 2016). Likewise, we review de novo the PCR

court's legal conclusions. Ibid.

      We previously addressed defendant's direct appeal involving the trial

court's denial of his motion to suppress evidence. State v. Gibbs, No. A-

                                     2                               A-2422-18T4
004461-14 (App. Div. March 1, 2017) (slip. op. at 1). There we set forth the

salient facts of this case that we will not repeat here unless they are germane to

this appeal.   Suffice it to say, as set forth in defendant's merits brief, the

victim, A.R., reported to police that three days prior "a black male, about 5'9''

[tall], very well[-]built, with a dark complexion[,]" "injected her with heroin

and repeatedly sexually assaulted her, and at one point[,] held a black gun to

her head" in Room 311 of a hotel which she named.             The State alleged

defendant threatened to shoot A.R. if she left the room. When police went to

Room 311, they found defendant in the presence of two other females. They

also recovered folds of heroin and a black and gray handgun.

      Defendant first contends his trial counsel was ineffective because he

failed to move to dismiss the indictment returned by the grand jury charging

him with: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7) (count

one), third-degree unlawful possession of a controlled dangerous substance,

N.J.S.A. 2C:35-10(a)(1) (count two), third-degree possession of a controlled

dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count

three), second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)

(count four), second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count five), fourth-degree unlawful possession of a

defaced firearm, N.J.S.A. 2C:39-3(d) (count six), second-degree possession of



                                       3                                 A-2422-18T4
a weapon during a drug offense, N.J.S.A. 2C:39-4.1 (count seven), third-

degree terroristic threats, N.J.S.A. 2C:12-3(a) (count eight), fourth-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count nine), fourth-degree

possession of prohibited bullets, N.J.S.A. 2C:39-3(f) (count ten) and second-

degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1)

(count eleven).

      Defendant avers a motion to dismiss the indictment would have been

granted—satisfying his burden to show that the proposed motion would have

been successful if filed, see State v. Fisher, 156 N.J. 494, 501 (1998)—because

the assistant prosecutor: "misled the grand jury by having the witness agree to

his conclusion that the gun seized matched the description of the weapon given

by A.R." even though the descriptions did not match; "improperly influenced

the grand jury by [introducing] testimony . . . that [d]efendant was engaged in

the promotion of prostitution or human trafficking, when no such charges were

before the grand jury"; and elicited before the grand jury testimony from the

police witness that defendant admitted in his statement to the police to having

sex with A.R., even though he never made such an admission to police when

he gave them a statement.

      "Because an indictment should only be quashed on the 'clearest and

plainest grounds,' the conduct of a prosecutor should not warrant dismissal



                                      4                                A-2422-18T4
unless it clearly invades the grand jury's decision-making function." State v.

Laws, 262 N.J. Super. 551, 562 (App. Div. 1993) (citation omitted) (quoting

State v. Dixon, 125 N.J. 223, 237 (1991)); see also State v. Hogan, 336 N.J.

Super. 319, 344 (App. Div. 2010) (noting that the standard for a dismissal of

an indictment for prosecutorial misconduct "can be satisfied by showing that

the grand jury would have reached a different result but for the prosecutor's

error."). Under that lens, we determine defendant has not demonstrated that

the elicited testimony warrants dismissal of the indictment. See Laws, 262

N.J. Super at 562; Hogan, 335 N.J. Super. at 344.

      Contrary to defendant's suggestion, the State never presented evidence

about A.R.'s description of the gun, including the actual color of the gun, to

the grand jury. 1 The police witness simply confirmed that A.R. described the

gun "in relatively good detail," and that fact, in addition to her description of

the perpetrator and his actions in Room 311, provided "some corroboration" of

A.R.'s allegations "in some sense."        Considering that defendant does not

dispute he possessed the handgun and pleaded guilty to possessing the

handgun as a convicted person, he has not demonstrated that the grand jury



1
  According to police reports, A.R. "described the gun as being black" and the
weapon seized from Room 311 was "a grey semi[-]auto[matic] 9mm handgun
with a black grip."


                                       5                                A-2422-18T4
result would have been different but for the presentation of the gun-related

evidence. See Hogan, 336 N.J. Super. at 344.

      The testimony about defendant's actions relating to prostitution is not

argued in proper context.     The assistant prosecutor did not suggest that

defendant was being charged with any crime involving prostitution or

trafficking. He told the grand jurors defendant denied being associated with

prostitutes, and defendant claimed to be paying for four rooms in the hotel in

order to provide protection for the women occupying them from a pedophile

on premises. And before eliciting the testimony, the assistant prosecutor made

clear that that, in questioning the police witness about this issue, they were

"talking common terms here . . . [and] not talking specifically about this

case[.]"

      While the prosecutor introduced general testimony regarding how a pimp

"breaks a girl," that evidence was not used to support a promoting prostitution

charge; rather, it was used to demonstrate that defendant's version of events,

given in his statement to police, was not credible. Specifically, the detective's

description of how a pimp breaks a girl was consistent with A.R.'s statement to

the police regarding how she was lured to Atlantic City and how her

relationship with defendant devolved. In perspective, the testimony was not,

as defendant argues, "confusing and prejudicial." Moreover, the testimony had



                                       6                                A-2422-18T4
no capacity to substantially influence the grand jury's return of the indictment,

given the prosecutor's caveat to the panel. Hogan, 336 N.J. Super. at 344.

Defendant has thus failed to show that a motion to dismiss the indictment

because of evidence relating to the gun or prostitution evidence would have

been granted. See Fisher, 156 N.J. at 501; Hogan, 366 N.J. Super. at 344.

      We do agree that the assistant prosecutor elicited from the witness that

defendant admitted to having sex with A.R.:

            Q. Okay, he then admits that he did have sex with one
            of the females . . . I don't want to say her name but is
            that A.R.? I'm sorry, the same female?

            A. I believe so.

            Q. She was referred to – I'll show you the reports I
            don't want to go ahead and say any names. Okay, I'm
            going to [show] you what's been marked as [S]tate's
            exhibit 1. And let's see here – [r]ight here. He's
            admitting that he had sex with at least one of the
            females.

            A. Yes.

            Q. Would that name there is that A.R.? Do you believe
            that's A.R.?

            A. Yes.

            Q. Okay and he's denying he had sex with some of
            these other females that he pays for the rooms and
            other rooms right?

            A. Right.



                                       7                                A-2422-18T4
             Q. So, at least he's admitting that he had sex with A.R.
             He doesn't admit to ever holding the gun to her head.
             He doesn't admit to threatening her. He doesn’t' admit
             to shooting her up with heroin, is that correct?

             A. Yes, he does not admit to any of those.

      Although he admitted to having sex with the women who were present in

his room when police arrested him, there is no evidence defendant admitted to

having sex with A.R. The assistant prosecutor's blunder, however, had no

impact on the return of the other indicted crimes; all other counts in the

indictment, including aggravated sexual assault, were dismissed pursuant to

the plea deal. Even if counsel moved to dismiss any charge based on the

assistant   prosecutor's   improper   elicitation   of   defendant's    nonexistent

admission, the certain persons count, to which defendant pleaded guilty, would

have survived, as would have the other nine counts of the indictment related to

guns and drugs.

      We reject defendant's argument that the inclusion of the aggravated

sexual assault count provided the State with undue leverage that the State used

to obtain defendant's guilty plea.          Notwithstanding the added exposure

defendant faced on the aggravated sexual assault count, we are not convinced

he would have rejected the State's recommended offer of a seven-year prison

term with a five-year period of parole ineligibility, and dismissal of the

remaining charges, even if that count was dismissed. See State v. O'Donnell,

                                        8                                  A-2422-18T4
435 N.J. Super. 351, 371 (App. Div. 2014) (holding a defendant "must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances.") (quoting Padilla v. Kentucky, 559 U.S.

356, 372 (2010)).

      Defendant's prodigious juvenile record as well as his prior adult

convictions, violations of probation and imposition of a suspended sentence

exposed him to a higher sentence than the seven-year midpoint term imposed.

Indeed, defendant was eligible to be sentenced to an extended term as a

persistent offender. N.J.S.A. 2C:44-3(a). And the five-year period of parole

ineligibility was mandatory. N.J.S.A. 2C: 39-7(b). Further, defendant faced

consecutive sentences if convicted of any of the other remaining counts.

      In State v. Wright, 155 N.J. Super. 549, 553 (App. Div. 1978), we cited

the "strong legislative policy in this State with respect to gun control, designed

to protect the public, which places restrictions on those who may carry such

weapons and is intended to prevent criminal and other unfit elements from

acquiring and possessing them." We then stated:

            The additional penalty under N.J.S.A. 2A:151-8 may
            either be concurrent with, or consecutive to, that for
            the conviction under N.J.S.A. 2A:151-41(a). The
            Legislature could not have intended that a convicted
            felon who possesses or carries an operable gun in a
            place not excepted from the permit requirements of
            N.J.S.A. 2A:151-41(a), be treated the same as a
            defendant who is not such a felon—a result which

                                        9                                A-2422-18T4
            would flow from merging convictions under that
            provision and N.J.S.A. 2A:151-8.

            [Id. at 555 (citation omitted).]

Based on that reasoning, we held that the convictions for the weapon offenses

did not merge.     Ibid.   We have applied Wright's merger-holding to the

successor statutes violated by defendant. State v. Lopez, 417 N.J. Super. 34,

37 n.2 (App. Div. 2010).

      The same facts support our refutation of defendant's argument that

sentencing counsel was ineffective for failing to argue for a lower base term.2

Assuming counsel was ineffective, we are unconvinced a lower term was

attainable, and defendant failed to meet the second Strickland 3 prong by

establishing there was a reasonable probability that, but for counsel's error, he

2
  We agree with defendant that the PCR judge erred in holding his sentencing
arguments were barred under Rule 3:22-4. He did not raise an excessive
sentencing argument that would be barred. State v. Flores, 228 N.J. Super.
586, 591-92 (App. Div. 1988). His ineffective assistance of sentencing
counsel argument is cognizable in a PCR petition. State v. Preciose, 129 N.J.
451, 460 (1992).
3
   The test announced by the United States Supreme Court for determining if
counsel was ineffective, adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), requires a defendant to first show that counsel was
deficient or made errors so egregious that counsel was not functioning
effectively as guaranteed by the Sixth Amendment of the Unites States
Constitution. Strickland v. Washington, 466 U.S. 668, 687 (1984). To meet
the second prong, a defendant must also demonstrate that there exists "a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694.


                                        10                               A-2422-18T4
would have rejected the plea agreement and gone to trial. State v. DiFrisco,

137 N.J. 434, 527-28 (1994).

      We determine the balance of defendant's arguments are without

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

We add only that his counsel was not ineffective for failing to present

mitigating factors. Defendant mentions only mitigating factor eleven, N.J.S.A.

2C: 44-1(b)(11), but offers no support for his bald assertion that it should have

been considered by the judge in sentencing. Moreover, the presentence report

lists defendant's employment status as unemployed,4 and he had "no present

income or personal assets," belying his contention that his daughter—who

lived with her mother—would have been adversely impacted by his

incarceration.

      Defendant did not raise before the PCR court that both his sentencing

and appellate counsel were ineffective because they did not argue that he was

not afforded his right of allocution at sentencing and, as such, we will not

address those arguments on appeal. State v. Robinson, 200 N.J. 1, 20 (2009).

      The PCR court correctly denied defendant's request for an evidentiary

hearing; he did not establish a prima facie case warranting one. R. 3:22-10(b);

4
   The presentence report also provides, "[t]he defendant reported to be self-
employed as the owner/operator of an entertainment business prior to his arrest
for the present case"; apparently no support was provided for his assertion.


                                       11                               A-2422-18T4
Preciose, 129 N.J. at 462-63. As we have determined, he failed to establish "a

reasonable likelihood of succeeding" under the familiar Strickland test. Id. at

463.

       Affirmed.




                                      12                               A-2422-18T4
