New NJ Appellate Division Decision – Post-Conviction Relief (PCR) 

On September 18, 2024, the New Jersey Appellate Division decided State of New Jersey v. Dana Kearney, 479 N.J. Super. 539 (App. Div. 2024), in which the court affirmed the trial court’s denial of defendant, Dana Kearney’s petition for post-conviction relief (PCR). The case focused on whether Kearney was deprived of the effective assistance of counsel due to an alleged conflict of interest by his defense counsel and the inadequate advice he received regarding his right to testify at trial. 

Facts and Procedural History in the Post-Conviction Relief (PCR) Case 

The incident stemmed from the fatal stabbing of the victim, Christopher Sharp, on August 18, 2013, at a house in Perth Amboy where defendant Kearney resided with his girlfriend and co-parent, Alicia Boone, and Boone’s three children. Sharp was Boone’s cousin. In 2017 a jury found Kearney guilty of murder and related offenses for the fatal stabbing of Sharp. Kearney, along with two codefendants, was sentenced to a term of fifty years, with a forty-year parole ineligibility period under the No Early Release Act. The conviction was upheld by the Appellate Division in a 2020 unpublished decision, and the New Jersey Supreme Court denied his petition for certification.  

Kearney subsequently filed a petition for post-conviction relief (PCR), arguing his counsel was ineffective. After hearing oral argument, the PCR court issued an order and accompanying written decision denying all relief apart from vacating court-imposed restitution. 

Legal Issue 1: Conflict of Interest and Post-Conviction Relief (PCR) 

The first issue on appeal concerned an alleged conflict of interest. Kearney’s trial counsel was paid by Alicia Boone, who was Kearney’s co-parent girlfriend at the time, as well as a key witness for the prosecution. Boone testified that Kearney admitted to her that he “poked” Sharp shortly after the stabbing. Kearney argued that his legal representation was compromised because Boone paid for the legal fees of his private criminal defense attorney. Kearney alleges the fee arrangement created an untenable conflict of interest, compromising his defense counsel’s loyalty and effectiveness. 

The Appellate Division disagreed, and affirmed the PCR court’s ruling that Kearney was not deprived of effective representation of his counsel, who represented him zealously at trial, and that no per se conflict existed. The appellate court took judicial notice of the fact that it is not unusual that a defendant’s family and friends will pay a private defense lawyer’s fee to represent a loved one or close acquaintance who is accused of a crime. In a few instances, as in this case, the payer may also be a potential fact witness for the State at the ensuing criminal trial.  

The court discerned no per se constitutional prohibition on such fee arrangements if disclosed, the defendant assents, and counsel’s vigorous representation of the client is not being materially limited by the payer. The court found that the record contains not a shred of evidence that Kearney’s counsel was restrained by Boone in his advocacy of his client. Boone’s limited interaction with Kearney’s attorney—solely regarding payments—did not affect the counsel’s performance. The court further found that Kearney failed to demonstrate actual prejudice from this arrangement, as his counsel cross-examined Boone extensively and challenged her credibility, particularly focusing on her changing statements to police. 

Legal Issue 2: Ineffective Assistance of Counsel and Post-Conviction Relief (PCR) 

The second issue involved Kearney’s claim that his attorney failed to properly advise him of his right to testify at trial under the Fifth Amendment. The PCR court found that Kearney was informed of his rights during the trial and voluntarily waived his right to testify after discussing the matter with his attorney. 

The Appellate Division upheld this finding, noting that strategic decisions, such as advising a defendant not to testify to avoid cross-examination on prior convictions, fall within the wide range of reasonable professional assistance. As a result, the court found no merit in Kearney’s claim of ineffective assistance of counsel. 

Conclusion: Key Takeaways on Post-Conviction Relief (PCR) 

In conclusion, the court affirmed the PCR court’s decision, holding that Kearney did not meet the two-part Strickland test for ineffective assistance of counsel, which requires a showing of both deficient performance and resulting prejudice. The decision stands for the proposition that an arrangement where a witness pays a defendant’s legal fees does not automatically create a conflict of interest. The ruling sets important precedents for future PCR cases, particularly concerning conflicts of interest and claims of ineffective assistance of counsel. 

Criminal law is complicated and constantly changing. If you are facing criminal charges, you should immediately contact our team of experienced former prosecutors to schedule a free case review with one of our expert criminal defense attorneys. A complete understanding of criminal law by your attorney is crucial to your defense. Your rights and freedoms are in jeopardy, and you owe it to yourself to act. We are available to provide immediate assistance and further counsel on your case at 862-315-7929. 

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