                                NOT FOR PUBLICATION WITHOUT THE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-1863-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AHMAD TAYLOR,
a/k/a AHAMD TAYLOR,

     Defendant-Appellant.
______________________________

                    Submitted September 18, 2018 – Decided October 9, 2018

                    Before Judges Yannotti and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 11-05-0958.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    Theodore Stephens II, Acting Essex County Prosecutor,
                    attorney for respondent (LeeAnn Cunningham, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Ahmad Taylor appeals from an order entered by the Law

Division on November 17, 2016, which denied his petition for post-conviction

relief (PCR). We affirm.

                                        I.

      An Essex County grand jury charged defendant with first-degree murder,

N.J.S.A. 2C:11-3(a)(1) or (2); second-degree unlawful possession of a weapon,

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

purpose, N.J.S.A. 2C:39-4(a); and third-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(a). Defendant was tried before a jury.

      At the trial, the State presented evidence that on January 16, 2011, Tyhirah

Borden and others went to an apartment in Newark. The victim, Amir McLean,

lived there with Samantha Jarrells and her three children. Jarrells is defendant's

aunt. McLean was not present when Borden arrived, but he appeared shortly

thereafter. The group was drinking wine, listening to music, and playing cards.

After socializing with the group, McLean went into his bedroom.

      At around 6:00 p.m., Jarrells called defendant and told him that earlier

that day, defendant's sister got into an altercation with some other persons.

Jarrells told defendant a man got involved and smacked his sister. She wanted




                                                                          A-1863-16T4
                                        2
defendant to come to the apartment and talk to the man who struck his sister.

Shortly thereafter, defendant and his friends arrived at Jarrells's apartment.

      Jarrells called one of the persons who had been involved in the altercation,

and during the call, defendant grabbed the phone. Jarrells said that defendant

showed her a gun he had tucked into the waistband of his pants. He said he was

going to use the gun when dealing with one of the persons involved in the

incident. Jarrells told defendant to put the gun away because there were children

in the apartment.

      McLean did not want defendant's friends in the apartment, and Jarrells

told them to leave. They left and defendant remained. McLean went to his

bedroom, and defendant was sitting on a couch in the living room. McLean later

exited his bedroom, asked Jarrells for wine, and got into an argument with her

when she did not answer him. McLean became angry and threw a stack of CDs

out of the window. He took some wine from the refrigerator and went back into

his bedroom.

      Defendant had been in the bathroom, and when he came out, he asked

Jarrells "[W]here the CDs at?" She told him McLean had thrown them out the

window. Defendant became upset. Borden offered to go outside to retrieve the




                                                                           A-1863-16T4
                                        3
CDs, but defendant ignored her. Defendant went to McLean's bedroom and

Borden followed.

       Borden testified that defendant entered the bedroom and told McLean to

"pick up these mother fucking CDs." McLean had been lying on the bed. He

stood on the bed and said, "[W]ho the fuck is you talking to?" Borden said

McLean put up his hands in fists and appeared as if he was ready to fight. A

few seconds later, defendant drew a gun from a blue laundry basket in Jarrells' s

closet. McLean pushed Borden, knocking her to the floor. Borden said she saw

defendant shoot McLean.

       Defendant testified that he confronted McLean and the two began yelling

at each other. He said McLean moved towards him and drew a gun from the

closet. He said he could not leave the room, but he wrestled the gun from

McLean. He claimed he was afraid to turn his back on McLean. He testified he

had "no choice" but to shoot McLean twice. He left the apartment and threw the

gun under a nearby dumpster. Defendant turned himself into police the next

day.

       The jury found defendant not guilty of murder, but guilty of

passion/provocation manslaughter and unlawful possession of a weapon. The

jury found defendant not guilty of possession of a weapon for an unlawful


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                                       4
purpose and endangering the welfare of a child. Thereafter, the trial judge

denied defendant's motion for a new trial.

      The judge sentenced defendant to ten years of imprisonment for

passion/provocation manslaughter, with an eighty-five percent period of parole

ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The

judge also sentenced defendant to a concurrent ten-year sentence for unlawful

possession of a weapon, with a five-year period of parole ineligibility, pursuant

to N.J.S.A. 2C:43-6(c). The court also assessed appropriate fines and penalties.

The court filed a judgment of conviction dated May 10, 2012.

      Defendant appealed to this court and raised the following arguments:

            POINT I
            THE STATE'S ARGUMENT IN SUMMATION THAT
            DEFENDANT     SHOULD    BE    CONVICTED
            BECAUSE "[I]N MURDER, YOU . . . DON'T SEE
            THE VICTIM" CONSTITUTED PROSECUTORIAL
            MISCONDUCT NECESSITATING REVERSAL.

            POINT II
            THE TRIAL COURT ERRED BY FAILING TO
            INSTRUCT THE JURY THAT THE PRIOR
            INCONSISTENT STATEMENTS CONTAINED IN
            THE POLICE REPORTS OF KEY STATE
            WITNESSES    WERE     ADMISSIBLE        AS
            SUBSTANTIVE EVIDENCE. (Not Raised Below).

            POINT III
            DEFENDANT'S SENTENCE IS MANIFESTLY
            EXCESSIVE AND UNDULY PUNITIVE.

                                                                         A-1863-16T4
                                       5
      On February 25, 2014, we affirmed defendant's conviction and sentence

in an unpublished opinion. State v. Taylor, No. A-5263-11 (App. Div. Feb. 25,

2014). The Supreme Court denied defendant's petition for certification. State

v. Taylor, 220 N.J. 39 (2014).

      On March 17, 2016, defendant filed a pro se petition for PCR. The court

appointed counsel for defendant and counsel filed an amended petition. On

November 17, 2016, the PCR court entered an order denying the petition for the

reasons stated in an accompanying written opinion. This appeal followed.

      On appeal, defendant argues:

            POINT I
            THE PCR COURT'S DENIAL OF DEFENDANT'S
            REQUEST FOR AN EVIDENTIARY HEARING WAS
            ERRONEOUS.

            POINT II
            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING TO
            ESTABLISH THAT HE WAS DENIED THE
            EFFECTIVE ASSISTANCE OF TRIAL AND
            APPELLATE COUNSEL.

            [A.]  FAILURE OF TRIAL AND APPELLATE
            COUNSEL TO MOVE TO DIMSISS THE
            INDICTMENT BASED ON IMPROPER EVIDENCE
            PRESENTED BEFORE THE GRAND JURY.

            [B.] FAILURE OF APPELLATE COUNSEL TO
            RAISE THE ISSUE OF THE IMPROVIDENT
            SUBSTITUTION OF [A] DELIBERATING JUROR.

                                                                      A-1863-16T4
                                      6
            [C.] FAILURE OF TRIAL COUNSEL TO PRESENT
            ALL RELEVANT MITIGATING FACTORS AT
            SENTENCING.

                                        II.

      The PCR court should conduct an evidentiary hearing on PCR petition if

the defendant presents a prima facie case in support of PCR, the defendant has

raised a "material issue[] of disputed fact that cannot be resolved by reference

to the existing record, and [the court] determin[es] that an evidentiary hearing

is necessary to resolve the claims for relief." R. 3:22-10(b). Furthermore, to

establish a prima facie case for relief, a defendant must establish a reasonable

likelihood that he or she will ultimately succeed on the merits, "viewing the facts

alleged in the light most favorable to the defendant." Ibid.; see also State v.

Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

      Here, defendant argues he was denied the effective assistance of trial and

appellate counsel. To establish a prima facie case of ineffective assistance of

counsel defendant must satisfy the two-part test established in Strickland v.

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

in State v. Fritz, 105 N.J. 42, 58 (1987).

      Under the test, "the defendant must show that counsel's performance was

deficient." Strickland, 466 U.S. at 687. Defendant also must show "the deficient


                                                                           A-1863-16T4
                                         7
performance prejudiced the defense."              Ibid.   To establish prejudice, "[t]he

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

      A. Grand Jury Proceeding

      Defendant argues that the assistant prosecutor improperly presented

evidence regarding his prior criminal history to the grand jury. Defendant

contends his trial counsel erred by failing to file a motion to dismiss the

indictment on this basis, and appellate counsel was deficient in failing to raise

this issue on appeal.      The PCR court found that a motion to dismiss the

indictment would have been meritless and trial and appellate counsel were not

ineffective in failing to raise this issue.

      An indictment is "presumed valid and should be dismissed only upon the

clearest and plainest ground and only if palpably defective."                  State v.

Schenkolewski, 301 N.J. Super. 115, 137 (App. Div. 1997) (citations omitted).

The court will not dismiss an indictment "unless the prosecutor's misconduct is

'extreme and clearly infringes upon the [grand] jury decision-making

function[.]'" State v. Hogan, 336 N.J. Super. 319, 339 (App. Div. 2001) (first




                                                                                A-1863-16T4
                                              8
alteration in original) (quoting State v. Schamberg, 146 N.J. Super. 559, 564

(App. Div. 1977)).

      Here, the record shows that during the grand jury proceedings, a juror

asked witness Detective Paul Sarabando whether he had run a check to

determine if defendant had a license to carry or possess a gun. The detective

replied he had not yet taken that action, but he stated that defendant had "a prior

history, so [he was] not able to carry" a gun.

      Later, another member of the grand jury asked whether any charges were

going to be filed against Jarrells because she had called defendant to her

apartment, knowing he had prior charges and could act violently. The assistant

prosecutor responded by issuing the following instruction:

            All right. . . . A couple of questions that I'm going to
            try to answer. Number [o]ne, the [d]etective indicated
            that the defendant was ineligible for a weapons permit
            because of prior offenses. That is not something you
            should consider in determining whether or not to return
            an indictment here.

            . . . There is no indication that we have that [Jarrells]
            knew [defendant] had a gun. There is nothing other
            than to indicate his relative age. He brought two friends
            with him. And you may draw whatever inference you
            wish from that. But again, there is no indication that
            [Jarrells] solicited him to do anything, especially since
            he arrived two hours after the fact.



                                                                           A-1863-16T4
                                        9
      A juror commented that because defendant had a prior record, he should

not have been able to obtain a permit to carry a gun. The assistant prosecutor

stated there is a presumption that an individual does not have a permit to carry

a gun unless that individual produces a permit. A grand juror stated that if a

person "has priors, he [cannot] have a permit anyway."

      Therefore, the record shows that the assistant prosecutor did not elicit

testimony regarding defendant's prior record.        The detective provided the

information in response to a question by a grand juror. Moreover, and most

important, the assistant prosecutor specifically instructed the grand jury that it

should not consider defendant's prior offenses in determining whether it should

return an indictment.

      Thus, trial counsel did not have a factual basis for seeking dismissal of

the indictment based upon prosecutorial misconduct. Furthermore, as we stated

in Schamberg, an indictment will not be dismissed based upon "a chance remark

or improper question before a grand jury [that] does not affect the ultimate

determination of defendant's guilt[.]"      Schamberg, 146 N.J. Super. at 563

(citations omitted).    We conclude the PCR court correctly found that trial

counsel was not ineffective for failing to seek dismissal of the indictment, and

appellate counsel did not err by failing to raise this issue on appeal.


                                                                          A-1863-16T4
                                       10
      B. Substitution of Juror

      Defendant argues he was denied the effective assistance of appellate

counsel because counsel did not argue on appeal that his conviction should be

reversed due to the improper substitution of a deliberating juror. The PCR court

determined that appellate counsel was not ineffective for failing to raise the issue

on appeal.

      The record shows that after the jury had deliberated for a full day plus

one- half hour on another day, a juror called the judge's chambers and indicated

she was ill and going to check herself into a hospital. After hearing argument

of counsel on this issue, the judge excused the juror and impaneled an alternate

juror. The judge found that the jury had not deliberated a significant amount of

time, and it could heed his instruction to begin its deliberations anew.

      The PCR court found that the trial judge properly substituted the juror in

light of her illness. The court rejected defendant's contention that the judge

should have contacted the deliberating juror to determine how long she would

be in the hospital. The court noted that Rule 1:8-2(d)(1) permits the court to

remove and replace a juror for a physical illness, and nothing in the rule requires

the trial judge to inquire into the juror's request to be excused based on a medical

reason.


                                                                            A-1863-16T4
                                        11
      The PCR court further found that because the jury had only been

deliberating a brief time, there was no indication that it had formed any

conclusions about the case. In addition, the court noted that there was no

evidence that the juror was a holdout juror, had manifested bias, or confronted

any hostile or intractable jurors.

      There also was no evidence any disputes had arisen in the jury room. The

PCR court determined that the juror's reported illness was sufficiently

debilitating to preclude her from further service on the jury, and no reason for

the trial judge to inquire into the juror's message.

      The PCR court correctly determined that appellate counsel was not

deficient in failing to argue that the trial judge erred by excusing the juror and

empaneling an alternate. As the court noted, such an argument would have been

meritless, and the appeal would not have been decided differently if counsel had

raised the issue.

      C. Sentencing

      Defendant argues that he was denied the effective assistance of counsel at

sentencing. He notes that he was sentenced for the manslaughter to a term of

ten years of incarceration, with an eighty-five percent period of parole

ineligibility. He asserts that a shorter sentence could have been imposed if


                                                                          A-1863-16T4
                                        12
counsel had argued mitigating factors two, eleven, and twelve. N.J.S.A. 2C:44-

1(b)(2), (11), (12).

      Here, the trial judge found aggravating factors three, N.J.S.A. 2C:44-

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

1(a)(6) (defendant's prior criminal record and seriousness of crimes of which he

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

and others from violating the law). The judge found no mitigating factors

applied.

      The record shows that at sentencing, defense counsel argued for findings

of   mitigating factors three, N.J.S.A. 2C:44-1(b)(3) (defendant acted under

strong provocation); four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds to excuse

or justify defendant's conduct); five, N.J.S.A. 44-1(b)(5) (victim induced or

facilitated the commission of the offense); eight, N.J.S.A. 44-1(b)(8)

(defendant's conduct was the result of circumstances unlikely to recur); and nine,

N.J.S.A. 44-1(b)(9) (defendant's character and attitude indicate he is unlikely to

commit another offense).

      Defendant argues that counsel also should have argued mitigating factor

two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct

would cause or threaten serious harm).          He contends his actions were


                                                                          A-1863-16T4
                                       13
spontaneous and taken in response to the victim's actions. He contends that

because the jury found him not guilty of              murder, but guilty of

passion/provocation manslaughter, his attorney could have credibl y argued

mitigating factor two. We disagree.

      In State v. Teat, 233 N.J. Super. 368, 372 (App. Div. 1989), we noted that

when a defendant is found guilty of passion/provocation manslaughter, the judge

may not find mitigating factor three, N.J.S.A. 2C:44-1(b)(3) (defendant acted

under a strong provocation). We noted that defendant had already received the

benefit of that factor when the jury reduced the murder charge to second-degree

manslaughter. Teat, 233 N.J. Super. at 372. The same reasoning applies to

mitigating factor two.

      Defendant further argues counsel should have raised mitigating factor

eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment will entail excessive

hardship to defendant or his dependents). Again, we disagree.

      Here, the PCR court noted that counsel was not ineffective by failing to

argue this factor. The court observed there is nothing in the record which

suggests defendant's incarceration would result in excessive hardship. The court

stated that defendant did not "present[] [any] evidence that at the time of

sentencing he suffered from any condition which would make imprisonment an


                                                                        A-1863-16T4
                                      14
excessive hardship on him, or that his counsel knew of any extraordinary fact

that made mitigating factor eleven applicable." The record supports the court's

findings.

      Defendant further argues his counsel should have argued mitigating factor

twelve, N.J.S.A. 2C:44-1(b)(12) (defendant's willingness to cooperate with law

enforcement authorities). Defendant notes that he surrendered to the police.

However, defendant's surrender is not a sufficient basis for finding mitigating

factor twelve. See State v. Read, 397 N.J. Super. 598, 613 (App. Div. 2008)

(questioning whether a confession qualifies as "cooperation," at least in the

absence of any indication that defendant identified other perpetrators or assisted

law enforcement in solving other crimes).

      Affirmed.




                                                                          A-1863-16T4
                                       15
