On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95- 09-2996.
Before Judges Petrella, Braithwaite and Wells.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2000
The State appeals, by leave granted, from the grant of defendant's petition for post conviction relief. The State contends that the Law Division judge erred in concluding that defendant's trial counsel was ineffective because he failed to interview a witness, prior to her testimony, who was scheduled to testify that "around the time of the alleged incident," defendant was with her. We agree with the State and now reverse. Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault, N.J.S.A. 2C:12- 1b(4); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. At sentencing, the judge granted the State's motion for the imposition of an extended term pursuant to N.J.S.A. 2C:44-3a. After merging the aggravated assault and possession of a weapon for an unlawful purpose conviction, defendant was sentenced to a custodial term of twenty-five years with a twelve and one-half year period of parole ineligibility on the robbery conviction and to a concurrent five-year term on the possession of a handgun conviction. We affirmed defendant's convictions and sentence. See State v. Banks, A5089-95 (App. Div. August 27, 1997), certif. denied, 152 N.J. 364 (1998).
The underlying facts supporting defendant's convictions are set forth in our prior opinion. We repeat them here.
On August 14, 1995, at approximately 8:30 a.m., Suzette Carter and her two young children were waiting at a bus stop in Newark. Defendant approached Carter and demanded her jewelry. Defendant showed Carter a gun that he had tucked in his shorts and ordered Carter and her children into a nearby driveway where he could complete the robbery.
Once in the driveway, Carter's son became frightened and ran out of the driveway. Defendant ordered Carter to call her son back, which she did. When the boy returned, defendant put the gun to the child's head, took Carter's jewelry and demanded money. When Carter told defendant that she had no money, defendant stated that he would shoot her son if she was lying. After going through Carter's pocketbook and finding no money, defendant fled the scene.
Carter then called her God-sister to report what had occurred. Carter's God-sister and cousin got into the cousin's car and proceeded to Carter's apartment. Carter then called the police. Thereafter, while looking out of her apartment window, Carter saw defendant. Before the police arrived, Carter and her cousin got into the cousin's car and followed defendant so that Carter could be sure that defendant was the person who had committed the robbery. Carter told her cousin that defendant was the perpetrator. Carter's cousin and sister followed defendant to his destination.
Subsequently, the police arrived and were told of defendant's whereabouts. Defendant was arrested, and Carter identified him as the person who committed the robbery approximately ninety minutes after the incident. Carter stated that defendant's appearance had changed between the robbery and his arrest. He had on different clothes, and his hair was combed differently. Carter, however, was positive that defendant was the person who committed the robbery.
On June 16, 1998, defendant filed a pro se petition for post conviction relief contending that: his trial counsel was ineffective because of "tainted out of court identification [and] improper jury instructions." Thereafter, counsel was assigned to represent defendant for his post conviction relief petition. Counsel amended defendant's petition to allege ineffective assistance of counsel on the following grounds: (1) failure to request mistrial or curative instruction when jury heard petitioner was on probation; (2) failure to present alibi witness (after opening to the jury with an alibi defense); (3) failure to object to jury charge not conforming to facts of case; (4) failure to consult with and discuss trial strategy with petitioner; (5) failure to motion for a new trial or judgment of acquittal; (6) failure to object or request mistrial or curative instruction regarding prosecutors remarks in summation; (7) failure to object to prosecutors improper opening remarks and instructing the jury on the law of misidentification; and (8) ineffective assistance of appellate counsel. The State opposed defendant's petition.
The Law Division judge rejected all of defendant's claims except the claim of ineffective assistance of counsel based upon counsel deficiencies involving the defense of alibi. The judge scheduled an evidentiary hearing, at which time defendant's trial counsel testified.
It is clear from the record that defense counsel filed a notice of alibi pursuant to Rule 3:12-2, signed by counsel and defendant. In the notice, counsel stated that defendant "may" rely on the defense of alibi and that the witness, defendant's girlfriend, Rhonda Caldwell ("Caldwell"), "will establish that defendant was with her on public transportation between Newark and Elizabeth around the time of the alleged incident." The alibi information was provided to counsel by defendant.
Defense counsel attempted to interview Caldwell before trial for two purposes. First, the interview was to cover defendant's claim that the charges against him were retaliation by the victim because defendant had "beaten up" the victim's boyfriend. Counsel sought information about the fight between defendant and the victim's boyfriend from Caldwell. Second, counsel sought to interview Caldwell about defendant's whereabouts on the date and time of the robbery. However, Caldwell could not be located for an interview at that time.
Prior to trial, counsel subpoenaed Caldwell to appear for trial on January 31, 1996. She did not appear. Following jury selection, defense counsel made his opening statement where he said in part:
But there is a different scenario, and I think when I explain certain things to you you will understand why there is an issue of fact. The defendant says I didn't do it. That's the first thing. Not me, you got the wrong person. So we have a question of identification. We have an issue as to where the defendant was at the time. You will hear testimony that it was approximately 8:30 in the morning, that Suzette Carter and her children were at a bus stop. Mr. Banks says I spent strike that. You have a problem with the time on your beeper?
Q: You have no idea what time it was, do you?
Q: Well, your beeper didn't keep good time, did it?
Q: Your beeper didn't keep good time, did it?
A: I guess not if you want to say so.
Q: You just testified your beeper didn't keep good time, didn't you?
A: No, I didn't say that. You said that. You said, did you have a watch on.
Q: Did you just testify that you had problems with your beeper?
Q: And your beeper didn't keep good time. Isn't that one of the problems that you had with it? Do you understand the question?
Q: Do you understand you have to answer it?
A: That's the time I gave you, 7 to 7:30.
Q: That's the time you gave us.
A: You don't care what time it was, do you?
[DEFENSE COUNSEL]: Objection.