                                NOT FOR PUBLICATION WITHOUT THE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-1219-17T3


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MONAUD TOUSSAAINT,1
a/k/a DAMU,

     Defendant-Appellant.
______________________________

                    Submitted December 4, 2018 – Decided January 3, 2019

                    Before Judges Yannotti and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 07-06-0061.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Janet A. Allegro, Designated Counsel, on the
                    briefs).




1
   We have changed the caption to conform to defendant's judgment of
conviction, which states that his last name is "Toussaaint."
            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Evgeniya Sitnikova, Deputy Attorney
            General, of counsel and on the brief).

PER CURIAM

      Defendant appeals from an order of the Law Division dated September 29,

2017, which denied his petition for post-conviction relief (PCR). We affirm.

                                        I.

      In June 2007, defendant was charged in a multi-count indictment with

first-degree racketeering, N.J.S.A. 2C:41-2(c) (count one); first-degree

conspiracy to commit murder of Almeen Palmer, N.J.S.A. 2C:5-2; N.J.S.A.

2C:11-3(a)(1) and (2) (count three); first-degree conspiracy to commit murder

of an individual identified as T.C., N.J.S.A. 2C:5-2; N.J.S.A. 2C:11-3(a)(1) and

(2) (count five); second-degree conspiracy to possess and distribute a controlled

dangerous substance, N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-5(a)(1) and (b)(2);

N.J.S.A. 2C:35-10(a)(1) (count six); fourth-degree solicitation or recruitment to

join a criminal street gang, N.J.S.A. 2C:33-28(a) (count thirty-one); third-degree

hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a) (count thirty-eight);

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count forty); third-degree unlawful possession of a weapon, N.J.S.A.




                                                                          A-1219-17T3
                                        2
2C:39-5(b) (count forty-one); and third-degree promoting prostitution, N.J.S.A.

2C:34-1(b)(2) (count forty-eight).

      On July 8, 2013, defendant pled guilty to count three, which charged him

with conspiracy to murder Palmer. Thereafter, defendant filed a motion to

withdraw his plea, but he withdrew the motion prior to sentencing. Defendant

was sentenced on May 12, 2014, to a ten-year term of incarceration, with an

eighty-five percent period of parole ineligibility, pursuant to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.         The court dismissed the other

charges.

      Defendant appealed from the judgment of conviction dated June 3, 2014,

and challenged his sentence. The appeal was heard on the court's excessive

sentence oral argument calendar. See R. 2:9-11. We affirmed the sentence.

State v. Toussaaint, No. A-1439-14 (App. Div. Mar. 10, 2015). The Supreme

Court denied defendant's petition for certification. State v. Toussaaint, 223 N.J.

165 (2015).

      Thereafter, defendant filed a pro se PCR petition, dated June 17, 2016.

He claimed he was denied the effective assistance of counsel at sentencing. In

his certification, defendant stated that he had discussions to engage in certain

criminal activities, and understood that the person with whom he had these


                                                                          A-1219-17T3
                                        3
discussions was "planning to kill [his] old friend," Palmer. Defendant alleged

he decided to warn Palmer and called him "right away." Defendant stated that

he "told [Palmer] there was a plot against him and he should be careful."

      Defendant stated that he gave this information to his attorney, but he was

unsure where to locate Palmer. After defendant pled guilty, Palmer called him

and he gave Palmer's contact information to his attorney.          According to

defendant, his attorney had an investigator speak with Palmer, who allegedly

confirmed that defendant had warned him that gang members planned to kill

him. Defendant stated that after he saw the investigator's report he wanted to

withdraw his plea, but changed his mind.

      Defendant stated that at sentencing, his attorney should have informed the

court he had warned Palmer and used this information to seek a lower sentence.

He said only two co-defendants received longer sentences than he did, but these

persons allegedly initiated the conspiracy. Defendant stated that as far as he

knew, the others involved had their charges dismissed or downgraded.

      The PCR court assigned counsel to represent defendant, and counsel filed

a letter brief and appendix with the court in support of defendant's petition. PCR

counsel argued that the court should conduct an evidentiary hearing because

defendant had presented a prima facie case of ineffective assistance of counsel.


                                                                          A-1219-17T3
                                        4
      PCR counsel asserted that defense counsel had not provided effective

assistance at sentencing.     PCR counsel argued that because defendant had

warned Palmer he was the intended victim of the threat against him, counsel was

deficient in failing to seek a finding by the sentencing judge on mitigating factor

four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify

defendant's conduct). PCR counsel argued that if this mitigating factor had been

raised, there was "a reasonable probability . . . the outcome of the sentencing

would have been different."

      PCR counsel further argued that relief was warranted based on the claims

defendant asserted in his pro se petition. PCR counsel asserted that due to

cumulative errors, defendant was denied due process and a fair trial, in violation

of the United States Constitution and the Constitution of the State of New Jersey.

PCR counsel also claimed that defense counsel should have re-negotiated the

plea after defendant presented proof he warned Palmer of the threat against him.

In addition, PCR counsel argued that defendant's claims were not barred by

either Rule 3:22-4 or Rule 3:22-5.

      On September 29, 2017, Judge Thomas M. Brown conducted an

evidentiary hearing on the petition. At the hearing, defendant's trial attorney

testified that after defendant entered his plea, an investigator reviewed


                                                                           A-1219-17T3
                                        5
defendant's claim that he warned Palmer of the threat against him.            The

investigator interviewed Palmer and provided a report, which counsel provided

to defendant.   Defendant decided that his attorney should file a motion to

withdraw the plea, even though counsel advised him he could be convicted on

"a whole host of other offenses" if the plea were withdrawn. Defendant decided

to withdraw his motion and proceed with sentencing.

      Defendant's attorney testified she did not specifically recall whether she

argued for findings of any specific mitigating factors at sentencing. She noted

that in his report, the investigator stated that Palmer said defendant had warned

him that other gang members wanted to kill him. Defendant's attorney testified

that the judge had that information because it was included in the motion to

withdraw the plea. She noted, however, that she did not raise this issue during

the sentencing proceeding.

      Palmer testified that defendant informed him that gang members planned

to kill him. Palmer said he and defendant laughed about it. Palmer also noted

that "a lot of people" had been telling him what they were going to do to him,

but he did not take any of it seriously. He noted, however, that he always carried

a gun. He stated that after defendant warned him, officers told him that there

was a plot against him. He told them he "ain't worried about none of that."


                                                                          A-1219-17T3
                                        6
      On cross-examination, Palmer stated that he had been a member of the

Nine Trey Gang, which is part of the Bloods. He was arrested for his gang-

related activities, pled guilty to first-degree racketeering, and was sentenced to

a fifteen-year term of incarceration. Palmer said defendant told him someone

was plotting to kill him, but defendant did not tell him he was going to call the

police. Palmer stated, "Why would he call the police? That ain't what we do in

[the] Bloods, you know that. That ain't the gang life."

      Defendant testified that he told his trial attorney that he "had warned . . .

Palmer . . . his life was in danger," and he wanted to withdraw his plea for that

reason. Defendant stated that someone ordered him and others to participate "in

going after" Palmer. He did not confront that individual because it would put

his own life at risk. Defendant said that after he pled guilty, Palmer reached out

to him.

      Defendant further testified that he contacted his attorney, and she sent the

investigator to speak with Palmer. Although the motion to withdraw the plea

was filed, defense counsel convinced him to withdraw the motion.               She

explained the ramifications of proceeding with the motion and the potential

sentencing exposure.




                                                                           A-1219-17T3
                                        7
      On cross-examination, defendant admitted that he did not try to convince

others not to kill Palmer because their minds were already made up, and he

believed his warning would be sufficient. Defendant said he did not know tha t

a confidential informant had advised the police of the threat against Palmer, and

that the police stopped the gang members from killing Palmer.

      Defendant insisted, however, that his warning stopped the gang members

from carrying out the threat. He stated that when the police arrived and arrested

him and other co-defendants, they did not state they were there to stop them

from killing Palmer. According to defendant, even after the arrest, some gang

members still wanted to kill Palmer. He said he warned Palmer again.

      Judge Brown placed his decision on the record. The judge found that

defendant had not established he had been denied the effective assistance of

counsel, and there was no other basis for relief. The judge stated that counsel's

conduct "did not fall below the standard of reasonableness," and defendant had

not shown that he was prejudiced by counsel's failure to specifically a rgue for a

finding of mitigating factor four at sentencing. The judge noted that even if

counsel had raised this issue, it would not have had an impact on defendant's

sentence. The judge entered an order dated September 29, 2017, denying the

petition. This appeal followed.


                                                                          A-1219-17T3
                                        8
                                        II.

      Defendant argues PCR court erred by finding that trial counsel's decision

not to argue for mitigating factor four at sentencing did not fall below a standard

of reasonableness. Defendant asserts the fact he warned the victim of the plans

to kill was a "significant mitigating factor" for sentencing purposes, and

counsel's failure to argue this point at sentencing was not reasonable.          He

contends there was a reasonable probability the outcome of the sentencing would

have been different if his attorney had argued this point.

      To prevail on a claim of ineffective assistance, a defendant must satisfy

the two-part test established in Strickland v. Washington, 466 U.S. 668, 687

(1984), which was later adopted by our Supreme Court in State v. Fritz, 105 N.J.

42, 58 (1987). The defendant must show that his attorney's "performance was

deficient" and that his attorney's "deficient performance prejudiced the defense."

Strickland, 466 U.S. at 687.

      In considering whether a defendant satisfied the first prong of the

Strickland test, we recognize a strong presumption that trial counsel exercised

reasonable professional judgment in the handling of the case. Id. at 690. To

overcome that strong presumption, a defendant must show that counsel's actions

"or omissions were outside the wide range of professionally competent


                                                                           A-1219-17T3
                                        9
assistance." Ibid. Furthermore, to establish prejudice under the second prong

of the Strickland test, the defendant must show there is a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694.

      Here, Judge Brown found that defendant was not denied the effective

assistance of trial counsel because at sentencing, defendant's attorney did not

seek a finding on mitigating factor four based on defendant's claim that he

warned Palmer of the threat against him.         Judge Brown determined that

defendant failed to show that counsel's performance was deficient and that he

was prejudiced by counsel's failure to seek a finding on mitigating factor four.

The record supports the judge's findings.

      At sentencing, the judge noted that defendant pled guilty to conspiring

with his co-defendants to kill Palmer because Palmer had changed his gang

affiliation. The judge stated that a co-defendant had ordered defendant to kill

Palmer. Defendant and a co-defendant attempted to locate Palmer, stole a car,

and gathered weapons for use in the murder. The judge noted that members of

the Atlantic City Police Department (ACPD) and the Atlantic County

Prosecutor's Office (ACPO) arrived and arrested defendant and his co-




                                                                          A-1219-17T3
                                       10
defendants. Defendant's conversations relating to the conspiracy "were picked

up on a lawful wiretap."

        The sentencing judge found aggravating factors three, N.J.S.A. 2C:44-

1(a)(3) (risk that defendant will commit another offense); five, N.J.S.A. 2C:44 -

1(a)(5) (substantial likelihood defendant is engaged in organized criminal

activity); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others

from violating the law). The judge found that aggravating factor six did not

apply, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and

the seriousness of the offenses of which he has been convicted). The judge noted

that defendant only had "one other upper court conviction," although it was for

aggravated assault.

        In addition, based on the statements of defendant and his wife, the judge

found     mitigating   factor   eleven,   N.J.S.A.   2C:44-1(b)(11)   (defendant's

imprisonment would entail excessive hardship to defendant or his dependents).

The judge also found mitigating factors nine, N.J.S.A. 2C:44-1(b)(9)

(defendant's character and attitude indicate he is unlikely to commit another

offense), and twelve, N.J.S.A. 2C:44-1(b)(12) (willingness of defendant to

cooperate with law enforcement). The judge gave partial weight to mitigating

factors nine and twelve because defendant pled guilty and "appeared to be


                                                                          A-1219-17T3
                                          11
sincere in his effort[] to change his prior way of life." The judge found that the

"aggravating factors slightly outweigh the mitigating" factors.        The judge

sentenced defendant to a ten-year prison term, subject to NERA.

      Even if we assume counsel was deficient, defendant has not shown it is

reasonably probable the sentencing judge would have sentenced defendant as a

second-degree offender if counsel had sought a finding on mitigating factor four.

Although defendant may have told Palmer of the threat against him, others had

warned him as well, and Palmer did not take the threats seriously. As he testified

at the PCR hearing, Palmer believed he could protect himself against the

threatened harm because he always carried a gun.

      The record also shows that defendant admitted he participated in the

conspiracy to murder Palmer. As the judge pointed out at sentencing, there was

evidence that defendant took actions in furtherance of the conspiracy.

Defendant gathered weapons and stole a car for use in the planned murder.

Furthermore, officers of the ACPD and members of the ACPO apparently

thwarted the planned murder when they disrupted a meeting and arrested

defendant and other gang members. Defendant's statements about the plan to

murder Palmer also were intercepted on a lawful wiretap.




                                                                          A-1219-17T3
                                       12
      Based on these facts, it is not reasonably probable the sentencing judge

would have found mitigating factor four.        The evidence would not have

supported a finding that "[t]here were substantial grounds to excuse or justify

defendant's conduct, though failing to establish a defense." See N.J.S.A. 2C:44-

1(b)(4).

      Moreover, even if the sentencing judge had found mitigating factor four,

it is not reasonably probable the judge would have downgraded the sentence

pursuant to N.J.S.A. 2C:44-1(f)(2). The statute provides that

            In cases of convictions for crimes of the first or second
            degree where the court is clearly convinced that the
            mitigating factors substantially outweigh the
            aggravating factors and where the interest of justice
            demands, the court may sentence the defendant to a
            term appropriate to a crime of one degree lower than
            that of the crime for which he was convicted.

            [Ibid.]

      Here, defendant failed to show it was reasonably probable the trial court

would have made the findings required for the sentencing downgrade under

N.J.S.A. 2C:44-1(f)(2).     As noted, the sentencing judge found that the

"aggravating factors slightly outweigh the mitigating" factors; however, the

addition of mitigating factor four would not have resulted in a finding "that the

mitigating factors substantially outweigh the aggravating factors," or a finding


                                                                         A-1219-17T3
                                      13
that "the interest of justice demands" that defendant be sentenced as a second-

degree rather than a first-degree offender. See ibid.

      Affirmed.




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                                      14
