                                 NOT FOR PUBLICATION WITHOUT THE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-3107-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES H. SCOTT,

     Defendant-Appellant.
______________________________

                   Submitted October 24, 2018 – Decided May 10, 2019

                   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
      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,




1
  We affirmed these convictions on direct appeal. State v. Scott (Scott I), No.
A-0853-06 (App. Div. Aug. 27, 2010).
                                                                             A-3107-16T4
                                         2
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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                                        3
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.
             Therefore, evidence of each of the charged crimes
             would have been admissible at separate trials for the
             purpose of showing a common scheme or plan and as
             evidence of identity and intent. . . . The crimes were
             similar in kind and reasonably close in time to each
             other, and the evidence was clear and convincing based
             on the video, the statements of the defendant, the gun,
             the gloves, the ski masks, the sweatshirt, the jacket, the
             seized proceeds of the robberies and the stolen car
             parked in front of the defendant's home. This evidence,
             taken together, was extremely probative of the common
             scheme knitting the charged robberies together and of

                                                                             A-3107-16T4
                                         4
             the identity of the perpetrators. . . . [T]he probative
             value of the evidence far outweighed its prejudice to the
             defendant . . . .

      Furthermore, citing State v. Louf, 64 N.J. 172, 177 (1973), the court held

that evidence of the four incidents was admissible to prove the conspiracy

charge, notwithstanding the jury's not-guilty verdict on that count. The PCR

court stated, "[I]t is well-settled that, where the crime charged was allegedly

committed in furtherance of a conspiracy, evidence of the acts of any conspirator

in furtherance of a common plan, including other crimes, is admissible against

all of the parties to the conspiracy."

      On appeal, defendant presents the following point for our consideration:

             POINT I

             THE POST-CONVICTION RELIEF COURT ERRED
             IN DENYING THE DEFENDANT'S PETITION FOR
             POST-CONVICTION      RELIEF     WITHOUT
             AFFORDING HIM AN EVIDENTIARY HEARING
             TO FULLY ADDRESS HIS CONTENTION THAT HE
             FAILED TO RECEIVE ADEQUATE LEGAL
             REPRESENTATION FROM TRIAL COUNSEL AS A
             RESULT OF TRIAL COUNSEL'S FAILURE TO FILE
             A MOTION FOR SEVERANCE INVOLVING THE
             VARIOUS CHARGES RELATING TO FOUR
             SEPARATE ROBBERIES AS WELL AS THE
             CHARGES RELATING TO VARIOUS WEAPONS
             OFFENSES.

             A.    FACTUAL BACKGROUND.


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                                         5
            B.     THE PREVAILING LEGAL PRINCIPLES
                   REGARDING CLAIMS OF INEFFECTIVE
                   ASSISTANCE OF COUNSEL BASED UPON
                   COUNSEL'S FAILURE TO MAKE AN
                   APPROPRIATE MOTION, EVIDENTIARY
                   HEARINGS,  PETITIONS   FOR  POST-
                   CONVICTION RELIEF AND MOTIONS FOR
                   SEVERANCE MADE PURSUANT TO RULE
                   3:152(b).

            C.     THE DEFENDANT WAS ENTITLED TO AN
                   EVIDENTIARY HEARING TO FULLY
                   ADDRESS TRIAL COUNSEL'S FAILURE TO
                   MAKE A MOTION FOR SEVERANCE PRIOR
                   TO TRIAL WHICH EFFECTIVELY DENIED
                   TO THE DEFENDANT HIS ABILITY TO
                   RECEIVE A FAIR TRIAL.

                                        II.

      We review de novo the PCR court's factual findings without an evidentiary

hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no deference

to the trial court's conclusions of law. Ibid.

      In reviewing the merits of defendant's petition, we apply the familiar two-

pronged Strickland standard to determine whether defendant has shown that (1)

his counsel's performance was so deficient that it "fell below an objective

standard of reasonableness," and (2) there was "a reasonable probability that,

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

been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). "The


                                                                         A-3107-16T4
                                         6
right to effective assistance" includes that of appellate counsel, and the same

Strickland test applies. State v. O'Neil, 219 N.J. 598, 610-11 (2014). "A

defendant shall be entitled to an evidentiary hearing" before a PCR court if he

or she establishes: "a prima facie case in support of post-conviction relief";

"material issues of disputed fact that cannot be resolved by reference to the

existing record"; and a "hearing is necessary to resolve the claims for relief." R.

3:22-10(b).

                                        A.

      It is not ineffective to refrain from filing a meritless motion or raising an

unsuccessful argument. State v. O'Neal, 190 N.J. 601, 619 (2007); State v.

Worlock, 117 N.J. 596, 625 (1990). We agree with the PCR court's assessment

that a severance motion would likely have failed. The PCR court accurately

described the applicable test for determining whether joinder is unduly

prejudicial. Substantially for the reasons the PCR court expressed, had the

robbery incidents been severed, evidence of the remaining incidents would have

been admissible under N.J.R.E. 404(b) to demonstrate "a common scheme or

plan [that] embodies the commission of two or more crimes so related that proof

of one tends to establish the other." State v. Lumumba, 253 N.J. Super. 375,

387 (App. Div. 1992); see also State v. Sterling, 215 N.J. 65, 92 (2013) ("Other-


                                                                           A-3107-16T4
                                        7
crimes evidence may also be admitted on the issue of identity when a particular

weapon or disguise used in one crime connects a defendant to another offense.");

State v. Long, 119 N.J. 439, 474 (1990) (applying the predecessor to N.J.R.E.

404(b) and holding that "evidence of the other crimes would have been

admissible [in a trial of severed counts] . . . to establish either identity or the

weapon used"). Here, defendant and his cohort used the same masks, gloves

and weapons in multiple robberies, which identified them as the offenders.

      Significantly, the indictment also charged that defendant conspired with

his co-defendants to commit the robberies between April 24 and May 17, 2003.

Where evidence that a defendant committed another crime "tends to establish

the existence of a larger continuing plan of which the crime on trial is a part, it

is admissible for such purpose." Louf, 64 N.J. at 178. Thus, the evidence of

each incident was admissible to prove the alleged conspiracy, notwithstanding

the jury's later acquittal of that count.

                                            B.

      Secondly, we are unpersuaded that defendant suffered any prejudice from

the joinder of the multiple charges. As the trial judge observed at the sentencing

hearing, the evidence against defendant was "overwhelming."             Defendant

confessed in writing to all four robbery incidents. He was arrested in possession


                                                                           A-3107-16T4
                                            8
of instruments of the robbery, including a semi-automatic handgun, ammunition

and the distinctive face-masks and gloves that the victims described and that

appeared in surveillance footage. In subsequent searches of defendant's and a

co-defendant's home, police seized fruits of the robberies, including stolen

merchandise and the key to a car he stole from one victim (along with a parking

ticket issued after the theft).   Defendant's main defense was that he had

confessed falsely while under pressure to clear his mother and uncle from

suspicion, as he was driving his mother's car when arrested and he possessed

bullet-proof vests that belonged to his uncle, a police detective.       Yet, the

evidence that defendant's will was overborne was weak.

      In sum, defendant has failed to demonstrate a reasonable probability that,

even if the charges were severed, and even if the evidence of the other robberies

were not admissible at each trial, the result would have been different. See State

v. Lazarchick, 314 N.J. Super. 500, 519 (App. Div. 1998) (finding the prejudice

prong was not met where defense counsel did not object to consolidation),

disapproved on other grounds by Flagg v. Essex Cty. Prosecutor, 171 N.J. 561,

570 (2002).

      Affirmed.




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