                                NOT FOR PUBLICATION WITHOUT THE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-5859-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WAYNE GREENE,

          Defendant-Appellant.


                    Submitted October 29, 2019 – Decided January 21, 2020

                    Before Judges Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 09-09-0799.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David Anthony Gies, Designated Counsel,
                    on the briefs).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Timothy M. Ortolani, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Wayne Greene appeals from the denial of his petition for post-

conviction relief (PCR), contending trial and appellate counsel were ineffective,

and the PCR court improperly denied his petition without an evidentiary hearing.

After a review of the contentions in light of the record, and applicable principles

of law, we affirm.

      In 2009, defendant and four co-defendants were charged in an indictment

with first-degree murder, in violation of N.J.S.A. 2C:11-3(a)(1)-(2) (count one);

fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d)

(count two); third-degree possession of a weapon for an unlawful purpose, in

violation of N.J.S.A. 2C:39-4(d) (count three); first-degree robbery, in violation of

N.J.S.A. 2C:15-1 (count four); first-degree felony murder, in violation of N.J.S.A.

2C:11-3(a)(3) (count five); and first-degree bias intimidation, in violation of

N.J.S.A. 2C:16-1(a)(3) (count six). Defendant was also charged with second-degree

robbery, in violation of N.J.S.A. 2C:15-1 (count eight), and second-degree witness

tampering, in violation of N.J.S.A. 2C:28-5 (count nine).

      After a sixteen-day trial, defendant was found guilty of aggravated

manslaughter, in violation of N.J.S.A. 2C:11-4(a), a lesser-included offense to count

one, and of counts two, three, four, five and nine. He was found not guilty of count

six. In October 2011, defendant was sentenced to thirty-five years in prison,


                                                                             A-5859-17T3
                                         2
with a thirty-year period of parole ineligibility, on the felony murder conviction.

Defendant was also sentenced to a consecutive term of ten years in prison on the

witness tampering conviction.

      On appeal, we affirmed the convictions and sentence but remanded for re-

sentencing on count nine. State v. Greene, No. A-3387-11 (App. Div. Oct. 30,

2014) (slip op. at 2-3).1

      At the trial, in addition to other witnesses, one of the co-defendants, and

defendant's girlfriend, Maria, testified for the State. The co-defendant stated

defendant and several others were targeting Hispanic people, intending to rob

them on the night of these events. After one of the co-defendants struck the

victim on the head with a baseball bat, defendant and others went through the

victim's pockets, taking his wallet and leaving the victim dead in the street.

      Maria left the country shortly after the murder. When she returned in

2008, she went to the police. She said defendant had called her several hours

after the murder, crying and upset. Defendant told her he had gone "to work,"

but "they overdid it." She said this meant defendant along with several of his

brothers and friends had robbed people. Maria reported that defendant told her



1
  On remand, defendant was sentenced to a six-year consecutive prison term on
count nine.
                                                                           A-5859-17T3
                                        3
his friend had struck a Hispanic man in the head with a bat. After the man fell,

defendant and several others went through the man's pockets, taking his wallet.

      During the trial, Maria repeated the information she had given to the

police. She also said she had several conversations with defendant and that he

asked her to say she was with him on the night of the murder if he was a rrested.

She was frightened because defendant said he would know if she had talked to

the police, because other than his family, she was the only person he had told

about the murder.

      Neither party obtained Maria's phone records. In his opening statement,

defense counsel informed the jury that, other than Maria's testimony, there was

no proof of any telephone conversation between defendant and Maria in the

hours after the victim's death. During his cross-examination of Maria, defense

counsel portrayed her as a jealous and bitter ex-girlfriend.       Counsel also

emphasized the State's failure to request Maria's telephone records.

      During the cross-examination of the prosecution's lead investigator,

Sergeant Jorge Jimenez, defense counsel questioned the lack of production by

the State of any telephone records documenting the call between defendant and

Maria. Jimenez stated he was told either by the phone company or an assisting

investigator that phone records were no longer in existence when requested nine


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                                       4
or ten months after the calls. During his summation, defense counsel referred

multiple times to the State's failure to produce these records.

        Jimenez also stated that defendant was hiding in a closet when they found

and arrested him. Defense counsel questioned this testimony during his cross-

examination, noting it was not stated in any police report. Thereafter, the State

attempted to introduce a report prepared by police officer W. Tyler which stated

defendant was hiding in a closet prior to his arrest. The Tyler report had not

been produced during discovery. When defendant objected to its use, the trial

court barred the use of Tyler's report but permitted testimony as to the

circumstances of the arrest from other police officers who were present at the

time.

        In April 2015, defendant filed a petition for PCR, and assigned counsel

thereafter filed a brief. 2 Defendant argued that trial counsel was ineffective in

failing to obtain and present Maria's phone records. He asserted that the phone

records would have contradicted Maria's testimony that he called her and

admitted involvement in the murder.

        In his supplemental brief filed two years later, defendant produced records

from a telephone number he claimed was his at the time of the murder. Defendant


2
    Defendant also filed a supplemental memorandum of law.
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                                         5
said the records were found at his grandmother's house, nearly six years after the

trial. The records were for a number different than the one Maria provided to the

police.

      During oral argument on the PCR petition, counsel argued the telephone

records indicated that Maria perjured herself when she testified at trial that defendant

called her. In addition, defendant contended trial counsel should have requested a

mistrial when the State proffered the not-previously-disclosed Tyler report.

      On May 30, 2018, the PCR court issued a comprehensive fifty-five-page

written decision, denying the petition. The court noted the extensive questioning

of Maria by defense counsel regarding her jealousy about the relationship

between defendant and his new girlfriend and referred to the inconsistencies in

her testimony. Maria also admitted during cross-examination that the police

never asked her for her phone records. In addition, counsel attacked Maria's

credibility "at length" during summation. The court determined trial counsel

made several tactical decisions in his questioning of Maria that did not amount

to ineffective assistance of counsel.

      In addressing defendant's contentions regarding his and Maria's phone

records, the court noted trial counsel used the State's lack of production of the

records to attack Maria's credibility on numerous occasions. In addition, the


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                                           6
court noted Jimenez's testimony that he was advised Maria's phone records did

not exist at the time of trial. Because the records were not available to either

party, defense counsel could not have been ineffective for failing to secure them.

      Even if the records had been produced, the PCR court noted it would not

have changed the outcome of the trial. As this court noted in the direct appeal,

there was "overwhelming evidence" of defendant's guilt and "extensive

circumstantial evidence of [his] involvement in the crimes." Greene, slip op. at

32. The PCR court opined that the jury could have convicted defendant solely

on the co-defendant's testimony. That testimony was corroborated by a number

of other witnesses.

      In addressing defendant's assertion regarding the Tyler report, the court

noted the report was damaging and not exculpatory to him. In addition, the trial

court did not permit the State to use the report at trial. Therefore, the court

concluded, defendant failed to "show how he was prejudiced by the State's

failure to provide the report before his trial commenced." Furthermore, because

the State did not call Tyler as a witness and the trial court barred his report, there

were no grounds for a mistrial.




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                                          7
      Finally, the court stated defendant had not presented any specific

arguments as to how appellate counsel was ineffective. To the contrary, counsel

raised numerous issues as reflected in this court's opinion on direct appeal.

      Defendant presents the following arguments:

            POINT I. THE FAILURE OF DEFENDANT'S TRIAL
            ATTORNEY TO INVESTIGATE OR OBTAIN THE
            TELEPHONE        COMPANY'S       RECORDS
            PERTAINING TO A CHIEF WITNESS WAS
            DEFICIENT        WHERE       DEFENDANT'S
            PARTICIPATION     IN  THE    CRIME   WAS
            DEPENDENT ON THE WITNESS'S TESTIMONY
            THAT DEFENDANT USED A PARTICULAR
            TELEPHONE NUMBER TO CONTACT HER.

            POINT II.    DEFENDANT WAS UNDULY
            PREJUDICED BY HIS TRIAL ATTORNEY'S
            DEFICIENT PERFORMANCE WHERE HE SIMPLY
            RELIED ON THE CROSS-EXAMINATION OF A
            CHIEF WITNESS TO SHOW THAT THE
            TELEPHONE     NUMBER   SHE    ALLEGED
            DEFENDANT USED TO CONTACT HER WAS NOT
            ASSIGNED TO HIM.

            POINT III. THE FAILURE OF DEFENDANT'S
            TRIAL ATTORNEY TO REQUEST A MISTRIAL
            WAS CONSTITUTIONALLY DEFICIENT WHERE
            HIS TRIAL STRATEGY CHANGED AFTER THE
            STATE'S LATE PRODUCTION OF A POLICE
            REPORT.

            POINT IV.  THE PCR COURT ERRED BY
            DETERMINING AN EVIDENTIARY HEARING
            WAS NOT WARRANTED IN SPITE OF
            DEFENDANT'S PRIMA FACIE . . . SHOWING

                                                                          A-5859-17T3
                                        8
             [THAT] HIS TRIAL ATTORNEY OFFERED NO
             EXPLANATION WHY HE DID NOT SUBPOENA
             THE TELEPHONE     COMPANY'S    RECORDS
             PERTAINING TO A MATERIAL WITNESS WHERE
             DEFENDANT'S PARTICIPATION IN THE CRIME
             WAS   DEPENDENT    ON   THE   WITNESS'S
             TESTIMONY THAT HE USED A PARTICULAR
             TELEPHONE NUMBER TO CONTACT HER
             WHICH HE DENIED WAS ASSIGNED TO HIM.

             POINT V. DEFENDANT'S APPELLATE COUNSEL
             WAS CONSTITUTIONALLY INEFFECTIVE FOR
             NOT ADDRESSING ON APPEAL THE TRIAL
             ATTORNEY'S FAILURE TO REQUEST A
             MISTRIAL.

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984) and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-pronged test establishing

both that: 1) counsel's performance was deficient and he or she made errors that

were so egregious that counsel was not functioning effectively as guaranteed by

the Sixth Amendment to the United States Constitution; and 2) the defect in

performance prejudiced defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Strickland, 466 U.S. at 687, 694.


                                                                             A-5859-17T3
                                         9
      We are satisfied from our review of the record that defendant failed to

demonstrate trial and appellate counsel were ineffective under the Strickland-

Fritz test, and we affirm substantially for the reasons expressed in the well-

reasoned opinion of the trial court.

      In addressing the phone record contentions, defendant failed to explain

how Maria's records would have established the falsity of her testimony. To the

contrary, trial counsel took advantage of the non-production to attack Maria's

credibility in his opening and summation and during his cross-examination of

her. Furthermore, Sergeant Jimenez testified that Maria's telephone records

were sought shortly after she approached the police in September 2008, but they

were unavailable. Therefore, trial counsel could not have been ineffective for

failing to secure records that were not available.

      In turning to the records defendant produced six years after the trial, they

were of no probative value as they failed to establish that a telephone call did not

take place between Maria and himself. As the PCR court noted, the records could

only establish that a call was not placed to Maria from that specific telephone

number. However, Maria testified that she used five different telephone numbers to

communicate with defendant during the applicable time. Finally, the telephone

records were in the possession of defendant's grandmother, who was present and


                                                                            A-5859-17T3
                                        10
testified at defendant's trial. Therefore, defendant could have produced them at any

point.

         Even if defendant's or Maria's telephone records were introduced, we cannot

discern the production would have changed the outcome. As we have previously

stated, there was "overwhelming evidence" from which the jury could find defendant

guilty.

         Because defendant has not demonstrated a prima facie case of ineffective

assistance of counsel, he was not entitled to an evidentiary hearing.           Any

remaining arguments lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

         Affirmed.




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                                         11
