                                 NOT FOR PUBLICATION WITHOUT THE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-4591-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRYDEN R. WILLIAMS, a/k/a
LANCE RIDDICK,

     Defendant-Appellant.
___________________________

                   Submitted April 27, 2020 – Decided July 20, 2020

                   Before Judges Messano and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 07-02-0150.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Howard Woodley Bailey, Designated
                   Counsel, on the brief).

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

PER CURIAM
      A jury convicted defendant Bryden Robert Williams of murder and related

weapons offenses, and the judge sentenced him to a fifty-year term of

imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. We

affirmed defendant's conviction and sentence on direct appeal.             State v.

Williams, No. A-3619-09 (App. Div. March 9, 2012).             The Court granted

certification and affirmed. State v. Williams, 219 N.J. 89, 102 (2014).

      Defendant filed a pro se petition for post-conviction relief (PCR) that

alleged trial and appellate counsel provided ineffective assistance (IAC). PCR

counsel was assigned, and defendant subsequently filed a certification adding

that trial counsel provided ineffective assistance because he "was unable to stay

awake[.]" Defendant gave some specific examples and further asserted that

during trial he told one of the Sheriff's Officers in the courtroom about the issue.

      Defendant also furnished a certification from his mother, Renee Hart, who

said she observed trial counsel "fall asleep on at least three occasions . . . on

three separate days[.]" She also saw defendant "nudge [counsel] in an attempt

to wake him up." Additionally, defendant filed a report from an investigator

who interviewed trial counsel about the allegation that he fell asleep during the

proceedings.




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      PCR counsel filed a second brief supporting the petition. He asserted that

trial counsel was ineffective because he did not ask the judge to voir dire the

jurors about whether they noticed him sleeping during trial. Defendant now

included a certification from trial counsel, who stated that during defendant's

trial, he felt "lethargic" because of a "blood sugar issue." However, while he

possibly closed his eyes "briefly once or twice[,]" counsel did not believe he

"fell asleep or missed anything." Although changes in his diet and the loss of

weight relieved him of this lethargy, counsel described a "similar issue" in

another trial approximately one year after defendant's trial. In that criminal case,

the defendant alleged counsel had fallen asleep. The judge in that case, after

noticing that counsel had his eyes closed during the prosecutor's two-hour

summation, "allowed [counsel] to listen to the taped summation to ensure . . .

[he] didn't miss anything."

      The PCR judge, Robert A. Kirsch, who was not the trial judge, heard oral

argument and ordered an evidentiary hearing "on the issue of whether

[defendant] was denied the effective assistance of counsel because of trial

counsel's purported sleeping at trial[.]" Judge Kirsch denied the petition as to

all other claims, including that counsel provided ineffective assistance by failing

to ask for a voir dire of the jurors regarding his purported sleeping during trial.


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                                         3
The judge explained his reasons in a comprehensive, thirty-one-page written

opinion that accompanied his June 30, 2017 order (the June order).

      The evidentiary hearing took place over several days, after which Judge

Kirsch detailed his factual findings and legal conclusions in another written

opinion.   Defendant's sister, brother, and "longtime girlfriend" testified

regarding their observations of defense counsel's conduct and demeanor during

trial. Judge Kirsch found their testimony "seemingly earnest," although it "did

not provide sufficient evidence that counsel was inattentive at trial through

sleeping or otherwise, or was inattentive in what can be characterized as

anything beyond momentary or fleeting[.]"

      Defendant testified about instances during trial where counsel fell asleep

or took "incoherent notes." According to defendant, counsel fell asleep several

times during trial. Defendant recalled one instance where counsel's phone

vibrated and, when counsel checked the notification, defendant saw a text

message from counsel's girlfriend telling him to "[w]ake up." Judge Kirsch

concluded that defendant "was uncertain of how many times he observed

counsel nodding off, and [defendant's] testimony was at times inconsistent,

confusing[,] and difficult to follow." The judge determined the allegations

"were vague and lacked specificity[,]" and, although the judge did not find


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                                       4
defendant's testimony "intentionally deceitful, . . . his overall credibility and

accuracy [were] suspect, imprecise, and unreliable."

      Trial counsel's wife, who was his girlfriend at the time of trial, testified

and acknowledged being a spectator at defendant's trial. However, she denied

ever sending her future husband a text message, as defendant claimed. Judge

Kirsch found her to be a credible witness.

      Trial counsel, an experienced attorney whose practice at the time of

defendant's trial was exclusively criminal defense work, did not believe he fell

asleep during the trial or received any text message from his future wife, nor did

counsel recall being nudged by defendant to wake up. Judge Kirsch found

counsel was a "highly credible witness[,]" who "acknowledged that he might

have closed his eyes for a moment or two during the trial[,]" but had "no animus

. . . toward [defendant] and . . . was devoted to his client and sought to represent

him effectively."

      Judge Kirsch discussed the two-prong test applicable to IAC claims

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). The judge also

considered those infrequent circumstances where prejudice is presumed, see,

e.g., United States v. Cronic, 466 U.S. 648, 658–59 (1984), and, in particular,


                                                                            A-4591-17T1
                                         5
the "limited circumstances[ in which] prejudice can . . . be presumed when a

defendant's attorney falls asleep during trial[,]" see, e.g., United States v. Ragin,

820 F.3d 609, 612 (4th Cir. 2016) (holding that "a defendant is deprived of his

Sixth Amendment right to counsel when counsel sleeps during a substantial

portion of the defendant's trial").

      Judge Kirsch concluded that the evidence adduced at the hearing "at

most[] established that counsel may have fleetingly dozed off a handful of times

during the [seven]-day trial during non-critical portions of the trial." Judge

Kirsch extensively reviewed the trial transcripts, cited specific examples of

counsel's performance during trial and concluded that defendant failed to

demonstrate any actual prejudice occasioned by any temporary inattentiveness

by counsel. As the judge said, "A review of the trial transcript, corroborated by

[defendant's] own witnesses at the . . . hearing confirm[s] that counsel was active

and engaged at trial[,] advocating on behalf of and strategizing with

[defendant]." Judge Kirsch determined that defendant had "not established by a

preponderance of the credible evidence that counsel was ineffective pursuant to

either Cronic . . . or Strickland[.]" He entered the September 11, 2017 order (the

September order) denying defendant's PCR petition, and this appeal followed.




                                                                             A-4591-17T1
                                         6
      Before us, defendant raises two points. First, he contends Judge Kirsch

erred in evaluating the evidence at the hearing and should have concluded that

trial counsel rendered ineffective assistance.    The argument overlooks our

deferential standard of review in these circumstances. See, e.g., State v. Nash,

212 N.J. 518, 540 (2013) ("Our standard of review is necessarily deferential to

a PCR court's factual findings based on its review of live witness testimony. In

such circumstances[,] we will uphold the PCR court's findings that are supported

by sufficient credible evidence in the record." (citing State v. Harris, 181 N.J.

391, 415 (2004))). Judge Kirsch's factual findings are amply supported by the

record, his legal conclusions were correct, and we affirm for the reasons he

expressed in his written opinion.

      Defendant's second argument is that the judge erred by denying

defendant's IAC claim that counsel rendered deficient performance by not

asking the trial judge to voir dire jurors "about [counsel's] sleeping during the

trial" without an evidentiary hearing. The argument merits limited discussion.

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

      In his written opinion supporting the June 2017 order, Judge Kirsch noted

"the absence of any case law finding trial counsel ineffective for failing to

investigate his own ineffectiveness immediately at the conclusion of trial." He


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                                       7
concluded that any failure to voir dire the jurors "about whether they notice d

[counsel] sleeping did not constitute ineffective assistance of counsel."

      We affirm now for slightly different reasons. See State v. Scott, 229 N.J.

469, 479 (2017) ("It is a long-standing principle underlying appellate review

that 'appeals are taken from orders and judgments and not from opinions . . . or

reasons given for the ultimate conclusion.'" (quoting Do-Wop Corp. v. City of

Rahway, 168 N.J. 191, 199 (2001))). In light of Judge Kirsch's findings after

the hearing, it logically follows that counsel, who denied ever falling asleep and

who the judge concluded was, at most, fleetingly inattentive, did not render

deficient, prejudicial assistance by failing to ask the judge to voir dire jurors

about what they may have witnessed.

      Affirmed.




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