Before Judges Petrella, Skillman and Steinberg.
The opinion of the court was delivered by: Skillman, J.A.D.
 Submitted February 17, 1998
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
This appeal from the denial of a petition for post conviction relief presents a claim by a non-English speaking criminal defendant that his constitutional rights were denied by the trial court's refusal to appoint a qualified interpreter to assist him in understanding the trial proceedings. Defendant also claims that he was deprived of the right of confrontation by the court's admission of a co-defendants' out-of-court statements which indirectly implicated him in the commission of the crime.
On July 12, 1989 defendant was indicted together with co-defendants Daniel and Paul DiBiase for conspiracy, contrary to N.J.S.A. 2C:5-2; receiving stolen property, contrary to N.J.S.A. 2C:20-7a; burglary, contrary to N.J.S.A. 2C:18-2; theft of movable property, contrary to N.J.S.A. 2C:20-3a; robbery, contrary to N.J.S.A. 2C:15-1; unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; aggravated assault, contrary to N.J.S.A. 2C:12-1b(4); armed burglary, contrary to N.J.S.A. 2C:18-2; armed robbery, contrary to N.J.S.A. 2C:15-1; kidnapping, contrary to N.J.S.A. 2C:13-1b; terroristic threat, contrary to N.J.S.A. 2C:12-3a; and hindering apprehension, contrary to N.J.S.A. 2C:29-3a(7) and N.J.S.A. 2C:29-3b(4). Defendant was tried jointly with Paul DiBiase before a jury in an eight day trial which ended on October 18, 1990. During the trial the court dismissed the charge of hindering apprehension. The jury found defendant guilty of all the remaining charges, except that it acquitted him of kidnapping and found him guilty of the lesser included offense of false imprisonment.
The court sentenced defendant to an extended term of fifty years imprisonment, with twenty years of parole ineligibility, for armed robbery. The court also imposed concurrent five year terms, with two-and-a-half years of parole ineligibility, for receiving stolen property, burglary and possession of a handgun without a permit, and a concurrent eighteen month term for false imprisonment.
Co-defendant Paul DiBiase was found guilty of the same charges and received the same sentence.
Both defendant and DiBiase filed appeals. We granted defendants' motion to consolidate their appeals and, as is discussed later in this opinion, a single joint brief was filed on behalf of both defendants. On November 19, 1992, we affirmed defendants' convictions in an unreported opinion. State v. Guzman, A-2364-90T1, A-2484-90T1. The Supreme Court subsequently denied defendants' petition for certification. 133 N.J. 436 (1993).
On July 22, 1993, defendant filed a petition for post conviction relief. Thereafter, the Public Defender assigned to represent defendant filed an amended petition and a supporting legal memorandum on his behalf. The primary arguments of the amended petition were that defendant had been deprived of the effective assistance of trial counsel and the right of confrontation because the trial court refused to assign a qualified interpreter to assist him during the trial; that he was denied the right of confrontation because the court admitted into evidence post arrest statements by co-defendant Paul DiBiase which implicitly inculpated him; that his trial counsel had been ineffective in failing to move for a severance after the court ruled that Paul DiBiase's statements were admissible; that his extended term sentence was manifestly excessive; and that his appellate counsel had been ineffective because he simply joined in arguments written by counsel for DiBiase without participating in the preparation of the argument section of the appellate brief and as a result the joint brief failed to raise several meritorious points which were applicable solely to defendant.
The court conducted an evidentiary hearing on the petition at which testimony was taken from defendant and the private counsel who represented him at trial and on appeal. The court denied defendant's petition by an oral opinion.
Before addressing the arguments defendant presents in this appeal, it is appropriate to describe briefly the evidence the State presented at trial.
On the evening of May 18, 1989, defendant and Paul DiBiase left Paul's brother Daniel behind in a station wagon parked near a boat ramp in Rumson and embarked on a rubber raft for the home of Lennart and Gloria Nilson located along the Navesink River. Defendant and DiBiase landed the raft in the rear of the Nilson property and entered the home wearing masks and carrying guns.
Mr. Nilson was working late at his desk when he saw the two men walk into the room. He described the first intruder as a white male, approximately forty-five years old, five feet, ten inches tall, stocky build, having a deep resonant voice, wearing a full mask and gloves, and carrying an automatic weapon. He described the second intruder as thinner, approximately five feet, six inches tall, having a Spanish accent, wearing dark shoes, shirt and gloves, and armed with a revolver. The men ordered Mr. Nilson to lead them to the bedroom where they knew Mrs. Nilson was asleep.
The intruders told Mr. Nilson to lie face down on the bed while they took his wallet and two bank envelopes containing cash from his pockets. One of the men then awoke Mrs. Nilson as he was removing her wedding rings from her finger. Thereafter, both victims were led at gunpoint into the bathroom where they were handcuffed to the soap dish. While the Nilsons were detained in this manner, the men removed valuables and personal articles they found within the house.
After the robbers had left the residence, Mr. Nilson called the police from the bathroom telephone. The police arrived within a few minutes and dispatched a description of the two men over the air. Because footprints were found near the dock and weeds growing near the dock looked as if something had been dragged through them, the investigating detectives determined that the robbers had left the scene by water.
Around 9:30 p.m., which was approximately two hours before the robbery, Rumson police had observed a station wagon with New York license plates parked just north of the community boat ramp. At about 1:40 a.m. Rumson police officer approached Daniel DiBiase and asked him what he was doing there. Daniel responded that he was waiting for his brother and a friend, who were testing a boat on the river. He said that the three had come from Yonkers and that the other two had left for Atlantic City at approximately 9:00 p.m. in a rubber raft with a black and blue stripe and a light colored outboard engine. Daniel described his brother as being five foot ten, with the stocky build of a weightlifter, and the friend as approximately five foot six, with a thin build and speaking with an accent. The Rumson police continued to check periodically on Daniel because of their suspicion regarding the boaters' distant destination and the length of their absence. At approximately 2:40 a.m., they induced Daniel DiBiase to come to the police station and file a missing persons report. The details of the report, which included a description of Paul DiBiase and defendant, were disseminated to the Marine Police and local authorities.
Sometime between 4:30 a.m. and 5:00 a.m. a police patrol boat found a black rubber raft with a white outboard engine, similar to the one described by Daniel DiBiase, on the north shore of the Navesink River, west of the Nilson dock. The police also found a blue jacket draped over the outboard engine, an automatic BB gun pistol, a packing slip with the Nilson's name on it, rolled coins, a crowbar, a black sneaker, a gas can, and a blue ski cap. Subsequently, human head hairs recovered from the jacket and cap were found to be microscopically consistent with defendant's hair, and the blue acrylic fiber recovered from defendant's shirt was found to be consistent with blue acrylic found on the cap. A week later, the police discovered a large quantity of the Nilson's valuables and other personal property taken in the robbery in the woods alongside the Navesink River near where the raft had been found.
At approximately 10:00 a.m. a police officer involved in the investigation noticed two men standing at a bus stop who fit the description of the two robbers. The officer also observed that their clothes were disheveled and sandy, their pants were wet from the knees down, and their arms were scratched and scraped. In addition, the stocky man spoke to the slender one in Spanish. Although neither of the suspects, who were subsequently identified as Paul DiBiase and defendant, had any weapons or identification, each had a wad of cash and defendant had a bank envelope from Mr. Nilson's bank.
At trial, the State also presented Detective Michael Cerame's testimony regarding certain inculpatory statements of co-defendant Paul DiBiase. Cerame testified that he expressed concern to DiBiase that only one of the suspects' handguns had been recovered, and there were two schools located between the site where that gun was found and the site of the arrest. Cerame testified that in response, Paul DiBiase stated something to the affect "I didn't have to worry about the gun. It wasn't real and nobody was going to get hurt by it if he had a gun." Cerame also testified that when he told Paul DiBiase he had had a conversation with his brother, DiBiase "said something to the effect that his brother wouldn't roll over on him."
On appeal, defendant makes the following arguments:
I. THE ABSENCE OF A CERTIFIED INTERPRETER AT THE TRIAL VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE PRESENT AT HIS TRIAL, TO CONFRONT THE WITNESSES AGAINST HIM AND TO ASSISTANCE OF COUNSEL, AND COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ABSENCE OF AN INTERPRETER AT TRIAL AND ON APPEAL.
II. ADMISSION OF CO-DEFENDANT PAUL DIBIASE'S INCULPATORY STATEMENTS AT HIS AND DEFENDANT'S JOINT TRIAL VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CROSS-EXAMINE THE WITNESSES AGAINST HIM, AND COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE AT TRIAL AND ON APPEAL.
III. THE EXTENDED GRAVES ACT TERM IS ILLEGAL, AND AN EXTENDED TERM IS EXCESSIVE. (Not Raised Below).
In response, the State argues that these claims are not cognizable on post-conviction review because they could and should have been ...