STATE OF NEW JERSEY v. LENROY LAURANCE

NOT FOR PUBLICATION WITHOUT THE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-2290-16T1

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

LENROY LAURANCE,
a/k/a DAMON D. WILLIAMS,

          Defendant-Appellant.
________________________________________________

              Submitted January 22, 2018 – Decided May 9, 2018

              Before Judges Messano and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 10-08-0841.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven M. Gilson, Designated
              Counsel, on the brief).

              Scott   A.    Coffina,    Burlington    County
              Prosecutor, attorney for respondent (Alexis R.
              Agre, Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM

        A jury convicted defendant Lenroy Laurence of the felony

murder of L.B., who defendant and others kidnapped during a
carjacking in Pennsylvania and drove around New Jersey for several

hours before executing her in a deserted field in Burlington

County.     State v. Lenroy Laurance, No. A-3696-11 (App. Div. Apr.

7, 2015) (slip op. at 1-2, 11-14).1              Judge Jeanne T. Covert

sentenced defendant on the murder and other related crimes to an

aggregate term of life imprisonment plus forty years, subject to

ninety-four and one-quarter years of parole ineligibility.                Id.

at 2.    On direct appeal, we vacated defendant's conviction on one

count but otherwise affirmed his conviction and sentence.            Id. at

4.    The Court denied defendant's petition for certification.            
223 N.J. 283 (2015).

        Defendant filed a timely pro se petition for post-conviction

relief (PCR).      PCR counsel raised two claims         of ineffective

assistance of trial counsel (IAC), only one of which is preserved

for   appeal.     Specifically,   citing   our    decision   in   State    v.

Gonzalez, 
444 N.J. Super. 62 (App. Div.), certif. denied, 
226 N.J.
 209 (2016), defendant argued trial counsel provided ineffective

assistance by not objecting to the judge's use of the phrase



1 Although Rule 1:36-3 generally forbids citing an unpublished
opinion, we do so here to provide a full understanding of the
issues presented and pursuant to the exception that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." Ibid.; see also Badiali v. N.J. Mfrs. Ins.
Grp., 
429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 
220 N.J. 544 (2015).

                                   2                                A-2290-16T1
"and/or" during jury instructions on "coconspirator liability."

The State argued that Gonzalez did not apply to the facts of this

case, and that defendant was procedurally barred from raising the

argument on PCR review because it could have been raised on direct

appeal but was not.        R. 3:22-4.

         Judge   Covert    denied   defendant's      petition       without     an

evidentiary      hearing   for   reasons     expressed    in   a   comprehensive

written opinion.          The judge properly set forth the two-prong

analysis for 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).                   First, a defendant

claiming IAC must show "that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed . . . by

the Sixth Amendment."        Id. at 52 (quoting Strickland, 
466 U.S. at
 687).      Second, he suffered prejudice due to counsel's deficient

performance.       Strickland, 
466 U.S.  at 687.          A defendant must show

a "reasonable probability" that the deficient performance affected

the outcome.       Fritz, 
105 N.J. at 58.        "A reasonable probability

is   a    probability     sufficient    to   undermine     confidence    in   the

outcome."        State v. Pierre, 
223 N.J. 560, 583 (2015) (quoting

Strickland, 
466 U.S.  at 694; Fritz, 
105 N.J. at 52).

         Judge Covert acknowledged that while instructing the jury on

the substantive crimes in the indictment, she "utilized 'and/or'

                                        3                                A-2290-16T1
terminology several times" in identical fashion.               For example, she

told   the    jurors    that   in    order     to   find   defendant   guilty    of

kidnapping, they must find "[defendant] and/or the conduct of

another person for which he [was] legally accountable unlawfully

removed      [L.B.]".      She      gave   similar     instructions    regarding

carjacking and felony murder.

       Judge Covert distinguished this case from Gonzalez, noting

there we reversed the defendant's conviction because the use of

"and/or"

             left open the possibility that some jurors
             could have found defendant conspired in or was
             an accomplice in the robbery but not the
             assault, while other jurors could have found
             he conspired in or was an accomplice in the
             assault but not the robbery. In short, these
             instructions did not necessarily require that
             the jury unanimously conclude that defendant
             conspired to commit or was an accomplice in
             the same crime.

             [Gonzalez, 
444 N.J. Super. at 76.]

Judge Covert reasoned that in this case, the instructions' "use

of 'and/or' was limited to describing the relationship between

[d]efendant's own conduct and the conduct of others with whom he

was in league.         At no point . . . would [the use of 'and/or']




                                           4                              A-2290-16T1
cause confusion as to which charge the defendant could be guilty

of."2

        The judge also noted that while using "and/or" was disfavored,

the Court did not "place an outright ban on the practice, so long

as the instructions are sufficiently clear and correct."                       See

Gonzalez, 
226 N.J. 209 ("The Court agrees with the Appellate

Division's     conclusion    that    the   use   of   'and/or'   in   the   jury

instruction in this case injected ambiguity into the charge.                   The

criticism of the use of 'and/or' is limited to the circumstances

in which it was used in this case.").

        Lastly,   Judge   Covert    concluded    that   defendant     failed   to

demonstrate prejudice.       She noted, and we agree, there was "very

strong and compelling evidence of [d]efendant's guilt adduced at

trial."     The judge entered an order denying defendant's petition,

and this appeal followed.

        Before us, defendant argues:

             DEFENDANT'S     FELONY    MURDER,     ROBBERY,
             KIDNAPPING, AND CARJACKING CONVICTIONS MUST BE
             REVERSED     DUE     TO    TRIAL     COUNSEL'S
             INEFFECTIVENESS FOR FAILING TO OBJECT TO THE
             "AND/OR" TERMINOLOGY IN THE TRIAL COURT'S JURY
             INSTRUCTIONS; IN THE ALTERNATIVE, THIS MATTER
             MUST BE REMANDED FOR AN EVIDENTIARY HEARING
             BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE
             CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.


2
  Defendant never asserted that the instructions on coconspirator
or accomplice liability were deficient.

                                       5                                A-2290-16T1
We have considered this argument in light of the record and

applicable legal standards.         We affirm substantially for the

reasons set forth in Judge Covert's opinion.            We add only the

following.

     Although     "and/or"   was   extensively   used   throughout    the

instructions, and it did on occasion offer the jury an opportunity

to consider two different crimes, our review of the entire jury

charge convinces us that the phrase did not create ambiguity or

confusion.   Given the substantial evidence of defendant's guilt,

any error was harmless beyond a reasonable doubt.        Therefore, even

if trial counsel rendered deficient performance by not objecting,

there is no "reasonable probability" that defendant suffered any

prejudice.

     Affirmed.3




3
  The State has not reasserted its argument that Rule 3:22-4(a),
which generally bars PCR claims based on any ground for relief
that could have been raised at trial or on direct appeal but was
not, provides an independent basis to affirm. Given our resolution
of the appeal, we need not specifically address the issue.

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