                                 NOT FOR PUBLICATION WITHOUT THE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-2218-17T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

DARRYL DENMARK, a/k/a
DARREL DENMARK,

           Defendant-Appellant.


                    Submitted April 3, 2019 – Decided June 11, 2019

                    Before Judges Alvarez and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 09-06-1125.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel;
                    Alison Stanton Perrone, on the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Erin M. Campbell, Assistant Prosecutor,
                    on the brief).

PER CURIAM
      Defendant Darryl Denmark appeals from the February 14, 2017 order

denying his application for post-conviction relief (PCR), and the August 31,

2017 order denying his motion for reconsideration. We affirm.

      Tried by a jury, defendant was convicted of first-degree murder, N.J.S.A.

2C:11-3(a)(1) or (a)(2); second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a); second-degree possession of a weapon without a

permit, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b). On May 3, 2012, defendant was sentenced to an

aggregate term of forty years imprisonment subject to thirty-five years of parole

ineligibility.

      Relevant to this PCR appeal, the direct appeal addressed defendant's

challenge to the identification process the authorities employed with the

principal eyewitness. See State v. Denmark, No. A-1584-12 (App. Div. Oct. 27,

2014) (slip op. at 1-2).     As we said in that opinion, the eyewitness was

acquainted with defendant, whom he referred to as "D," and knew the mother of

defendant's child, who coincidentally posted bail for defendant. See id. at 6.

The eyewitness knew "the shooter's nickname, had known him since childhood,

gave a physical description of the shooter, and told the detectives that the shooter

was the father of [a] one-year-old son." Id. at 7-8. Furthermore, the eyewitness's


                                                                            A-2218-17T3
                                         2
reluctance to identify the shooter arose from his fear of retribution because of

defendant's gang involvement, not because of any hesitancy regarding identity.

Id. at 6, 8.

       We remanded solely for the purpose of corrections to the judgment of

conviction regarding parole ineligibility and merger. Id. at 22. The Supreme

Court denied defendant's petition for certification. State v. Denmark, 221 N.J.

220 (2015).

       Also relevant to this appeal, is the fact that after the State rested, defendant

engaged in a colloquy with his attorney under oath as follows. Counsel asked:

               [Counsel]: [Do you know]            that   you   have    a
               constitutional right to testify?

               [Defendant]: Yes. Yes.

               [Counsel]: And I've discussed that with you -- your
               right. Correct?

               [Defendant]: Yes.

               [Counsel]: And [co-counsel] has discussed that with
               you. Correct?

               [Defendant]: Yes.

               [Counsel]: And we discussed that with you not only
               here today, but on a number of prior occasions.
               Correct?

               [Defendant]: Yes.

                                                                               A-2218-17T3
                                           3
[Counsel]: And you understand that the right to testify
or not to testify is yours, and yours alone. Correct?

[Defendant]: Yes.

[Counsel]: And you're not under the influence of any
substances today?

[Defendant]: No.

[Counsel]: No -- and have you had time to think about
whether or not you want to take the witness stand?

[Defendant]: Yes.

[Counsel]: And what is your decision?

[Defendant]: No. I'm not going to take the stand.

      ....

[Counsel]: And has anybody forced you to make this
decision?

[Defendant]: No.

[Counsel]: Is this decision entirely your own?

[Defendant]: Yes.

[Counsel]: Did you make this decision after hearing my
opinion and [co-counsel]'s opinion, as well as
considering whatever opinions that you may have
consulted?

[Defendant]: Yes.



                                                          A-2218-17T3
                           4
            [Counsel]: And -- and, once again, no one has coerced
            you to make this decision.
            Right?

            [Defendant]: No.

      During the trial, the State presented testimony by an expert in forensic

pathology. The doctor who actually performed the autopsy died prior to trial,

therefore the State's witness testified about the autopsy from his own

independent review of the report, materials, and photographs.       That expert

agreed that the victim died from three gunshot wounds.

      The Law Division judge who denied the PCR petition did so after an

evidentiary hearing during which defendant called a forensic psychologist. He

testified extensively regarding the unreliability of eyewitness identifications,

based on his experiences and review of the literature. His testimony, albeit

extensive, was general in nature.

      Defendant also testified during the evidentiary hearing. He admitted that

he had known the eyewitness since childhood, knew the eyewitness's nickname,

and was acquainted with his mother.

      Defendant's trial attorney was cross-examined about the eyewitness

identification. He said that it was his trial strategy, based on discussions with

defendant, to establish that the eyewitness could not have seen the shooting


                                                                         A-2218-17T3
                                       5
because he was not in the area. Counsel indicated that defendant had told him,

when the two reviewed discovery together, that the eyewitness was not at the

scene. The trial attorney also said that defendant, in the words of the Law

Division judge, "didn't hide the fact that he was on the scene and that he had had

a dispute with the . . . victim in this particular case and that the victim had had

some kind of, you know, romantic relationship with . . . the mother of

[defendant's] child." Counsel also indicated that the eyewitness refused to speak

to his investigator in advance of trial.

      Counsel testified he had never used an identification expert at trial. He

would not have done so in this case because the issue was not that the eyewitness

was mistaken, but that the eyewitness was simply not present. Counsel also said

that he attempted to put the most reasonable construction on the facts as was

possible because "I have to stand in front of fourteen people and with a straight

face, tell them a . . . story that is believable, more believable than the State's

theory . . . ." He claimed he presented alternative defenses only where it would

not cause him to lose credibility before a jury.

      The judge relied heavily on counsel's testimony that since defendant could

not credibly dispute his acquaintance with the eyewitness, the strategy would be

to demonstrate that the eyewitness was not present at the scene. Counsel also


                                                                           A-2218-17T3
                                           6
had inconsistencies regarding the trajectory of the bullets that he planned to

argue created doubt about the eyewitness's presence, and therefore doubt about

his credibility. The manner in which counsel presented the identification issue

to the jury was based entirely on placing as favorable a slant as possible on

irrefutable facts.   This established that counsel's decision not to challenge

identification was sound trial strategy.

      The judge also noted that the trial record did not support defendant's claim

that he had no adequate opportunity to discuss his right to testify wi th counsel.

He further observed that even if counsel had advised defendant that he should

not take the stand, "this statement does not violate [defendant's] constitutional

rights. It qualifies as advice from experienced trial counsel."

      Addressing the issue of the pathologist's testimony, the judge discussed

applicable precedent, such as State v. Roach, 219 N.J. 58, 79 (2014), which

supports the common sense principle that where the individual who performed

scientific testing is unavailable, an expert familiar with those testing modalities

may testify without violating a defendant's right to confrontation. So long as

the reviewer is qualified, and not merely parroting a report, no violation of

defendant's right to confrontation has occurred. The doctor who testified at trial

had "personally reviewed the original autopsy report, verified its conclusions,


                                                                           A-2218-17T3
                                           7
and ha[d] made an independent conclusion based on such review. [Defendant's]

constitutional right to confront witnesses against him was therefore not

violated."

       The judge gave an equally thorough and cogent explanation of why

reconsideration would be inappropriate. The proofs defendant presented simply

did not overcome the presumption that counsel's representation was objectively

reasonable. Measuring counsel's performance "under prevailing professional

norms[,]"1 it was clear that counsel was not ineffective. Counsel faced a difficult

set of facts. Counsel nonetheless filed motions to suppress the identification

and obtain a Wade hearing, both of which were ultimately denied. Counsel

requested, and the judge gave, an eyewitness identification jury charge at trial.

Furthermore, "that he did not also call an identification expert was reasonable

in light of what other defense attorneys were doing at the time."

       Now on appeal, defendant raises the following points:

             POINT I
             THE INADEQUATE REPRESENTATION THAT
             PETITIONER RECEIVED AT TRIAL FELL BELOW
             AN OBJECTIVELY REASONABLE STANDARD,
             THUS VIOLATING HIS RIGHT TO EFFECTIVE
             ASSISTANCE OF COUNSEL UNDER THE UNITED
             STATES AND NEW JERSEY CONSTITUTIONS
             INSOFAR AS TRIAL COUNSEL FAILED TO

1
    Strickland v. Washington, 466 U.S. 668, 688 (1984).
                                                                           A-2218-17T3
                                        8
            PRESENT THE TESTIMONY OF AN EYEWITNESS
            IDENTIFICATION EXPERT.

            POINT II
            TRIAL COUNSEL FAILED TO PROPERLY AND
            ADEQUATELY DISCUSS [DEFENDANT]'S RIGHT
            TO TESTIFY AT TRIAL.

            POINT III
            TRIAL COUNSEL FAILED TO PROPERLY AND
            ADEQUATELY CONFRONT THE MEDICAL
            [EXAMINER] WHO TESTIFIED AT TRIAL,
            THEREBY       EFFECTIVELY     WAIVING
            [DEFENDANT]'S RIGHT TO MEANINGFUL AND
            ADEQUATE CONFRONTATION.

      We are satisfied that based on Judge John A. Young, Jr.'s comprehensive

written decisions both on the motion for PCR after the evidentiary hearing, and

the motion for reconsideration, this appeal must be denied because none of the

contentions had merit. Indeed, they lack sufficient merit, in light of the record

developed at the evidentiary hearing, to warrant much discussion in a written

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

      Had counsel presented an identification expert, such testimony would

have been irrelevant, given the eyewitness's familiarity with defendant.

Defendant discussed his right to testify with counsel, as defendant was

questioned about it on the record after the State rested.           Finally, the

confrontation clause was not violated because the expert who testified had done


                                                                         A-2218-17T3
                                       9
far more than merely parrot the conclusions the original pathologist reached in

his report. He had examined the underlying documents, including slides and

photographs, and was thus able to independently verify each and every

conclusion.

      Affirmed.




                                                                       A-2218-17T3
                                     10
