On appeal from Superior Court of New Jersey, Law Division, Union County.
Skillman, Kestin and Wefing. The opinion of the court was delivered by Skillman, J.A.D. Kestin, J.A.D., Dissenting.
Defendant was indicted together with codefendant Stephen L. Garry for second degree robbery, in violation of N.J.S.A. 2C:15-1; attempted kidnapping, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-1b; criminal restraint, in violation of N.J.S.A. 2C:13-2; kidnapping, in violation of N.J.S.A. 2C:13-1b, and aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a. Pursuant to a plea bargain under which he agreed to testify against defendant, Garry pled guilty and was sentenced to a thirty year term of imprisonment, with fifteen years of parole ineligibility. The State also offered defendant a plea bargain under which he would be subject to a maximum term of thirty years, with fifteen years of parole ineligibility. However, defendant declined this offer and elected to go to trial.
A jury found defendant guilty of robbery, attempted kidnapping, kidnapping and aggravated sexual assault. The court dismissed the charge of criminal restraint. On December 4, 1987, the court sentenced defendant to concurrent nine year terms of imprisonment, with three years of parole ineligibility, for robbery and attempted kidnapping, and a consecutive eighteen year term of imprisonment, with eight years of parole ineligibility, for kidnapping. The court merged defendant's conviction for aggravated sexual assault into his conviction for kidnapping. Thus, the court originally sentenced defendant to an aggregate term of twenty-seven years imprisonment, with eleven years of parole ineligibility.
Defendant filed a notice of appeal from his conviction on July 18, 1988, and this court entered an order on February 22, 1989, authorizing defendant's untimely notice of appeal to be filed nunc pro tunc. On August 21, 1989, the State filed a motion for leave to file a cross-appeal nunc pro tunc, contending that defendant's sentence for kidnapping was illegal. This motion was granted on September 12, 1989.
We rejected all of the arguments made by defendant and affirmed his conviction. State v. Baker, No. A-5384-87T4 (decided Jan. 2, 1990). However, on the State's cross-appeal we remanded to the trial court for reconsideration of the sentence:
On its cross-appeal, the State argues that, as to the Count Four first-degree kidnapping conviction, N.J.S.A. 2C:13-1c(2) requires a sentence "of 25 years during which the actor shall not be eligible for parole, or a specific term between 25 years and life imprisonment, of which the actor shall serve 25 years before being eligible for parole." That mandatory sentence, introduced into the statute by L. 1986, c. 172, § 2, is applicable
if the victim of the kidnapping is less than 16 years of age and if during the kidnapping:
(a) A crime under N.J.S. 2C:14-2 or subsection a. of N.J.S. 2C:14-3 is committed against the victim[.]
The offense here was committed in January 1987, the victim was apparently less than 16 years of age and the jury found she was the victim of an N.J.S.A. 2C:14-2 crime. It would thus appear that the mandatory sentence is applicable and that the sentence imposed by the trial Judge is illegal. However, since defendant did not have the opportunity to be heard at sentencing as to any mandatory sentence, or as to how the remaining sentences should be structured if a mandatory sentence is imposed, we are reluctant to impose any mandatory sentence ourselves. We choose, rather, to remand the matter to the trial Judge for reconsideration of the Count Four sentence in light of N.J.S.A. 2C:13-1c(2) and, in connection therewith, for reconsideration of the remaining sentences as well.
Defendant filed a motion for reconsideration of the part of our opinion remanding for reconsideration of his sentence. We denied this motion on February 27, 1990, but stated that the issues raised in the motion could be presented to the Law Division in connection with its reconsideration of defendant's sentence.
Defendant filed a petition for post-conviction relief on March 27, 1991, which alleged that he had been denied effective assistance of counsel because of defense counsel's failure to present certain exculpatory evidence at trial, and that he had been denied due process and equal protection of the law because the State had entered into a plea bargain with codefendant Garry under which Garry testified against defendant in exchange for an illegally short sentence. After an evidentiary hearing, the trial court denied defendant's petition on October 7, 1991.
On February 19, 1992, the trial court resentenced defendant pursuant to our remand to a twenty-five year term of imprisonment without eligibility for parole for kidnapping and concurrent nine year terms of imprisonment, with three year periods of parole ineligibility, for robbery and attempted kidnapping. The court also merged defendant's conviction for aggravated sexual assault into his conviction for kidnapping. Thus, defendant was resentenced to an aggregate term of twenty-five years imprisonment without eligibility for parole, which more than doubled the period of parole ineligibility imposed under his original sentence.
Defendant filed separate notices of appeal from the denial of his petition for post-conviction relief and his resentencing, which we consolidated.
Defendant argues that he was denied the effective assistance of counsel guaranteed by the United States and New Jersey Constitutions. To prevail on a claim of ineffective assistance of counsel, a defendant must show first that his counsel's performance was "deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and second, "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, 104 S. Ct. at 2068, 80 L. Ed. 2d at
698. In applying these tests, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S. Ct. at 2052, 80 L. Ed. 2d at 694. Our courts apply the same two-pronged test to a claim of ineffective assistance of counsel under Article I, paragraph 10 of the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 53-58, 519 A.2d 336 (1987).
To place defendant's claims of ineffective assistance of counsel in context, it is necessary to summarize the testimony at trial. The State presented evidence that defendant and Garry were involved in separate attacks upon two female victims in Elizabeth during the evening of January 7, 1987. According to the victims, defendant was the operator and Garry the passenger in the car used in both attacks.
The first victim, Elizabeth Soto, testified that Garry jumped out of the car, grabbed her handbag and attempted to pull her into the car. However, she resisted and the assailants escaped with only her handbag. Soto tentatively identified defendant as the driver from a photographic array which she was shown a few weeks after the crime. She also positively identified defendant at trial.
The second victim, M.B., testified that Garry jumped out of the car, grabbed her and pulled her into the car. The car drove away and Garry sexually assaulted her sometime thereafter. According to this victim, defendant also attempted to sexually assault her but she bit him. M.B. identified defendant from a photographic array a few weeks after the crime and also identified him at trial.
Garry testified for the State that he and defendant jointly committed both assaults. However, Garry testified that he was the driver of the car and that defendant was the one who got out of the car and attacked both victims. Garry also testified that both he and defendant sexually assaulted M.B.
In addition, Detective Conrad Cheatham of the Elizabeth Police Department testified that defendant admitted participating in the assault upon Ms. Soto. According to Detective Cheatham, defendant
told him that he was the one who actually attacked Soto while Garry drove the car.
Defendant contends that his trial counsel's performance was deficient in a number of respects. First, defendant contends that his counsel should have introduced evidence that he was walking down the street with Garry when Soto, walking in the opposite direction, saw Garry and called the police, resulting in Garry's apprehension, but that she failed to recognize defendant as the other person involved in the assault. Defendant claims that such evidence would have undermined the credibility of Soto's assertion that she could not make a positive identification of defendant from his photograph but would be able to recognize him in person, and also would have undermined the reliability of Soto's identification of defendant in court nine months later.
At the hearing on defendant's petition for post-conviction relief, defense counsel acknowledged that defendant had requested him to present evidence of his face-to-face encounter with Soto, but that he decided it would be strategically inadvisable to present such evidence:
Mr. Baker's defense was that he hardly knew Mr. Stephen Garry. The place where he was with Miss Soto -- with Mr. Garry on the date in question was in proximity to the location of the crime.
In addition to being in the proximity of the crime itself, since he indicated that he was not familiar with Mr. Garry, that places him with Mr. Garry about two to three weeks subsequent to the crime in the general vicinity of the crime.
So, strategically I didn't think that was a good thing to do, to bring before the jury two or three weeks subsequent to the crime Mr. Baker and Mr. Garry were still together, based on the fact he had indicated he was not very familiar 0 with Mr. Garry.
At trial, defendant testified on direct examination:
Q. And how often would you say you have seen Steven Garry over that four and a half year period?
A. May see him once and then may not see him for two months.
Similarly, on cross-examination defendant testified:
Q. You knew each other. You weren't enemies?
Q. Ever hang out together?
Q. Ever do things together?