                                NOT FOR PUBLICATION WITHOUT THE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-5207-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KAFELE K. BOMANI, a/k/a
SHAUN A. GOODING, SHAWN
GOODING, and SHAUN GRANT,

     Defendant-Appellant.
_____________________________

                    Submitted January 14, 2020 – Decided February 10, 2020

                    Before Judges Fisher and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 09-08-2019

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Craig S. Leeds, Designated Counsel, on the
                    brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Nicole Lynn Campellone, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Kafele Bomani appeals from an order denying his petition for

post-conviction relief (PCR). He contends that his trial and appellate counsel

provided him with ineffective assistance. Having conducted a de novo review

of the record, we affirm substantially for the reasons explained by Judge Patricia

M. Wild in her thorough twenty-page opinion denying the PCR petition after

hearing oral argument, but without an evidentiary hearing.

      A jury convicted defendant of first-degree attempted murder, N.J.S.A.

2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2); second- and third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:12-1(b)(2); and three weapons

offenses, including second-degree certain persons not to have a weapon,

N.J.S.A. 2C:33-7.

      The evidence at trial established that defendant shot another man in the

early morning hours of October 20, 2007, outside the Wyndham Resort Hotel in

Atlantic City. The shooting was captured on video by a hotel surveillance

camera and witnessed by a hotel security guard who was watching the monitor

of the surveillance camera. A hotel bellman also witnessed the shooting. Both

the security guard and bellman saw the shooter get into a sports utility vehicle

(SUV) and the bellman noted the vehicle's license plate number. Defendant was

the registered owner of the SUV. A subsequent search of defendant's apartment


                                                                          A-5207-17T1
                                        2
found clothing, including a distinctive hat, that matched the clothing and hat

worn by the shooter as seen in the video.

      The victim survived the shooting but refused to cooperate in the

investigation of the crime. At trial, defendant was identified as the sho oter by

the security guard and by DNA evidence from the hat.

      The video surveillance recording was admitted into evidence but was not

in its original form. Detectives had not been able to make a copy of the digital

surveillance recording from the hotel security system. Consequently, they used

their own video recorder to film what they were looking at on the monitor in the

security office. After conducted a pre-trial hearing, the trial court ruled that the

copied surveillance evidence was admissible at trial. At trial the State used a

video expert to explain the recording process to the jury.

      After the jury convicted defendant, he moved for a new trial contending

that there was newly discovered evidence.         In support of that motion, he

presented a certification from an inmate named Matthew Hayes who had been

housed at the county jail at the same time as defendant. Hayes claimed that he

was a friend of the victim and he had been with the victim at the time of the

shooting. Hayes also claimed that it was not defendant who shot the victim.

The trial court conducted a post-trial hearing, took testimony from Hayes, and


                                                                            A-5207-17T1
                                         3
concluded that his testimony was not credible. Accordingly, the trial court

denied defendant's motion for a new trial.

      Initially, defendant was sentenced to an extended term of life in prison,

with a period of parole ineligibility, on the conviction for attempted murder. All

the other convictions were merged with his attempted murder conviction, except

for the certain persons weapons conviction. On the certain persons conviction,

defendant was sentenced to a concurrent prison term of ten years.

      Defendant appealed his convictions and sentence. On his first appeal, we

affirmed defendant's convictions, but reversed his life sentence and remanded

for resentencing. State v. Bomani, No. A-3373-11 (App. Div. Mar. 3, 2014).

      At his second sentencing, defendant was sentenced to thirty-five years in

prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant again appealed his sentence. We reversed and remanded for another

sentencing because the sentencing court had considered "what defendant's

sentence 'would have been if he had accomplished what he intended,' i.e.,

murder." State v. Bomani, A-0017-15 (App. Div. Feb. 9, 2016).

      In July 2016, defendant was sentenced for a third time. On the conviction

for attempted murder, defendant was sentenced to twenty-five years in prison,

subject to NERA. All his other convictions were merged, except for the certain


                                                                          A-5207-17T1
                                        4
persons conviction. On that conviction, defendant was sentenced to ten years in

prison to run concurrent with his sentence for attempted murder.

      Defendant filed a petition for PCR. 1 He was assigned counsel, and Judge

Wild heard oral argument on the petition. On March 16, 2018, Judge Wild

issued a written opinion and order denying defendant's petition.

      In her opinion, Judge Wild addressed the eleven arguments raised by

defendant and his PCR counsel. Judge Wild found that two of defendant's

arguments had been raised on his first direct appeal and were, therefore,

precluded from being raised again. See State v. McQuaid, 147 N.J. 464, 484

(1997); State v. Preciose, 129 N.J. 451, 459 (1992); R. 3:22-4. Judge Wild then

comprehensively reviewed each of defendant's remaining arguments and found

that none of them established a prima facie showing of ineffective assistance of

counsel. Finally, Judge Wild found that defendant had submitted nothing that

created material issues of fact warranting an evidentiary hearing. See Preciose,

129 N.J. at 462-63; R. 3:22-10(e).




1
  The petition included in the appendix does not identify when it was filed. In
his brief defendant stated that his PCR petition was filed on December 10, 2014.
In its brief, the State "adopted" defendant's statement of the procedural history.
The State has not argued that defendant's petition was untimely.
                                                                          A-5207-17T1
                                        5
     On this appeal, defendant challenges the denial of his PCR petition on

numerous grounds. Specifically, he presents the following arguments:

           POINT I – DEFENDANT WAS DENIED THE
           EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN
           VIOLATION OF THE UNITED STATES AND NEW
           JERSEY CONSTITUTIONS AND THE LOWER
           COURT ERRED IN CONCLUDING OTHERWISE

                 A.  THE     PREVAILING   LEGAL
                 PRINCIPLES REGARDING CLAIMS OF
                 INEFFECTIVE    ASSISTANCE   OF
                 COUNSEL, EVIDENTIARY HEARINGS
                 AND    PETITIONS    FOR   POST
                 CONVICTION RELIEF

                 B.  TRIAL      COUNSEL      WAS
                 INEFFECTIVE IN FAILING TO RETAIN
                 A VIDEO FORENSIC EXPERT TO
                 REFUTE THE STATE'S EXPERT
                 WITNESS,   DET.    JOHANNESSEN,
                 REGARDING CRITICAL EVIDENCE,
                 SPECIFICALLY, THE SURVEILLANCE
                 VIDEO ALLEGEDLY CAPTURING THE
                 ACTUAL CRIME

                 C.  TRIAL     COUNSEL     WAS
                 INEFFECTIVE FOR FAILING TO
                 OBTAIN AND REVIEW ALL OF THE
                 DISCOVERY IN THIS CASE, AND
                 SUBSEQUENTLY,    FAILING   TO
                 PROVIDE     ALL      RELEVANT
                 DISCOVERY TO THE DEFENDANT

                 D.  TRIAL          COUNSEL     WAS
                 INEFFECTIVE        IN  FAILING   TO
                 CONDUCT                   PRE-TRIAL

                                                                       A-5207-17T1
                                     6
INVESTIGATION OF ALL POTENTIAL
WITNESSES HAVING RELEVANT
AND/OR            EXCULPATORY
INFORMATION BEARING ON THE
CASE AND THEN CALLING THEM AS
DEFENSE WITNESSES

E.  TRIAL     COUNSEL      WAS
INEFFECTIVE  IN    FAILING   TO
PROPERLY OBJECT WHEN THE
PROSECUTOR          COMMITTED
FLAGRANT    MISCONDUCT     AND
TAINTED THE TRIAL BY TELLING
THE JURY THAT HE WOULD NEVER
HAVE MADE A PLEA OFFER TO THE
VICTIM IN THE VICTIM'S OWN
CRIMINAL MATTER, GRANTING THE
VICTIM LENIENCY IF HE TESTIFIED
AGAINST     THE     DEFENDANT
BECAUSE      THAT        WOULD
CONSTITUTE AN ILLEGAL BRIBE

F.   TRIAL     COUNSEL     WAS
INEFFECTIVE IN NOT CHALLENGING
THE                PROSECUTOR'S
VINDICTIVENESS IN SEEKING A
SUPERSEDING INDICTMENT FOR
ATTEMPTED MURDER BECAUSE
DEFENDANT ELECTED TO EXERCISE
HIS EIGHTH AMENDMENT RIGHT TO
A REASONABLE BAIL AND LITIGATE
A MOTION FOR REDUCED BAIL

G.  TRIAL     COUNSEL     WAS
INEFFECTIVE BY ADVISING THE
DEFENDANT THAT IF HE TESTIFIED
AT TRIAL, THE STATE WOULD BE
PERMITTED TO USE HIS CRIMINAL

                                  A-5207-17T1
               7
                  HISTORY    TO           IMPEACH       HIS
                  CREDIBILITY

                  H.  TRIAL    COUNSEL     WAS
                  INEFFECTIVE FOR FAILING TO
                  REQUEST AN ADVERSE INFERENCE
                  CHARGE FOR THE STATE'S LOSS
                  AND/OR     DESTRUCTION    OF
                  MATERIAL EVIDENCE

            POINT II – THE DEFENDANT'S STATE AND
            FEDERAL RIGHTS TO A FAIR TRIAL WERE
            VIOLATED BY THE TRIAL COURT'S FAILURE TO
            ENFORCE A SEQUESTRATION ORDER FOR ONE
            OF THE STATE'S WITNESSES

            POINT III – DEFENDANT WAS DENIED THE
            EFFECTIVE ASSISTANCE OF APPELLATE
            COUNSEL

            POINT IV – DEFENDANT WAS DENIED THE
            EFFECTIVE ASSISTANCE OF POST CONVICTION
            RELIEF COUNSEL

            POINT V – THE CUMULATIVE EFFECT OF THE
            ERRORS COMPLAINED OF RENDERED THE
            TRIAL UNFAIR

            POINT VI – THE LOWER COURT ERRED IN
            DENYING DEFENDANT'S PETITION FOR POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING

      All but one of defendant's appellate arguments were presented to Judge

Wild. We reject the repeated arguments for the reasons explained by Judge Wild

in her well-reasoned opinion. In short, Judge Wild correctly analyzed each of

                                                                      A-5207-17T1
                                      8
those arguments, applied the well-established law, and found that none of those

arguments satisfied the two prongs required to establish ineffective assistance

of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.

Fritz, 105 N.J. 42, 57-58 (1987). Having conducted a de novo review, we agree

with the conclusions reached by Judge Wild.

      Defendant also presents one new argument; contending that his PCR

counsel was ineffective in two respects. First, defendant asserts that his PCR

counsel failed to retain a forensic video expert to support his petition. Second,

defendant contends that his PCR counsel was ineffective in not submitting to

the PCR court two letters he wrote on March 23, 2010 and April 18, 2010.

      At trial, the State had presented a forensic video expert to explain how the

hotel surveillance video had been copied.       In his PCR petition, defendant

contended that his trial counsel was ineffective in failing to retain an

independent expert to challenge the State's video expert. Judge Wild rejected

that argument because defendant had not presented any facts as to what such a

rebuttal expert would have contended and whether a defense expert could have

raised legitimate grounds for challenging the use of the video. Accordingly,

under established case law, Judge Wild rejected that argument. See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).


                                                                          A-5207-17T1
                                        9
      On appeal, defendant argues that his PCR counsel was ineffective in not

retaining a video expert. He also argues that his PCR counsel was ineffective in

not presenting two letters, which he argues would have shown that his trial

counsel was ineffective in not investigating the potential witness, Matthew

Hayes.

      Neither of these new arguments satisfies either prong of the Strickland

test. 466 U.S. at 687; Fritz, 105 N.J. at 58. There is still no showing that a

defense video expert could have made any legitimate arguments to rebut the

State's expert. Moreover, the letters go to an issue that was considered and

rejected on direct appeal. Finally, there is no showing of prejudice. Defendant

was accorded a jury trial. The evidence at trial included testimony from two

eyewitnesses to the shooting, as well as the video. There was also strong

physical evidence in the form of clothing, the hat, and the SUV , all of which

linked defendant to the shooting.    Defendant's arguments about ineffective

assistance of his PCR counsel do not undermine any of that strong evidence.

      Affirmed.




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