On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-05-1316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2007
Before Judges Wefing, Parker and C.S. Fisher.
Defendant Kareem McCargo appeals from an order entered on June 3, 2005 denying his petition for post-conviction relief (PCR).
Defendant was sentenced on December 21, 2001 after a jury found him guilty of first degree carjacking, N.J.S.A. 2C:15-2a(2); first degree armed robbery, N.J.S.A. 2C:15-1; second degree burglary, N.J.S.A. 2C:18-2; and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. After the appropriate mergers, defendant was sentenced on Count 1 to a term of seventeen years subject to 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and on Count 3 to a term of eight years subject to three years parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6g.
The facts giving rise to the charges against defendant occurred on October 27, 2000 when Amanda Miller drove her friend, Amy Schlump, to Cooper Hospital in Camden to pick up Schlump's boyfriend. Miller and Schlump parked in Miller's purple Neon and waited for the boyfriend for about fifteen minutes. When Schlump's boyfriend did not arrive, Schlump went into the hospital to call him from a pay phone. Schlump testified that she was in the hospital for five to ten minutes and when she returned, Miller was "crying" and "hysterical."
Miller testified that while she was waiting for Schlump in the car, two men approached the driver's side window and "one boy had a gun in his hand and he told me to get the fuck out of the car," as he pointed a gun at her head. When Miller exited the car, the two men got in and drove off. Miller testified that the man with the gun was wearing a "black or navy blue sweatshirt . . . [with] a zipper in the front and . . . a hood." The other man was wearing "a gr[e]y sweatshirt . . . [with] some kind of writing across the front."
Camden Police Officer Jeffrey Frett testified that on the evening of October 28, 2000, he received information about the carjacking through the local dispatcher. At about 3:00 a.m., Frett spotted Miller's purple Neon with two occupants. Frett followed the suspects as they were parking and put his lights on. At that point, the suspects fled from the car on foot, leaving the car in drive and causing it to hit another parked vehicle.
Frett radioed the police station that the suspects were fleeing on foot as he continued to follow them in his car. During the chase, Frett lost sight of one of the men, but followed the other, who was later identified as Shaheed Dotson. Backup officers arrived and set up a perimeter around the area where Frett lost sight of defendant. Sergeant Strang found defendant in an abandoned garage. He also found a black sweater with a pink panther on it in the same garage where he found defendant.
Defendant testified on his own behalf that on the evening in question he was at a friend's house playing cards until 1:35 a.m. He presented two alibi witnesses, Tiray Jones and Darcell Holmes. Both witnesses testified that defendant was with them playing cards at a friend's house on the night of the carjacking. Defendant testified that when he left his friend's house, a car flashed its lights at him and "Bopbop" (Fernando Smalls) and Dotson were in the purple Neon. Defendant asked them for a ride to his girlfriend's house. Defendant claimed "Bopbop" and Dotson told him the Neon was not stolen.
Dotson had previously pled guilty to the carjacking in juvenile court and testified that defendant was involved. By the time of defendant's trial, however, Dotson advised an investigator from the Prosecutor's Office that he was afraid of defendant's family, if he testified against defendant. Dotson testified at trial that "Bopbop" was with him when they took the purple Neon. He acknowledged, however, that when he entered his plea, he testified that defendant participated in the carjacking and had the gun.
Defendant appealed the conviction and sentence and we affirmed on April 11, 2003 in an unpublished opinion, Docket No. A-3686-01T4. The Supreme Court denied his petition for certification on September 22, 2003. State v. McCargo, 177 N.J. 577 (2003). Thereafter, defendant filed his PCR petition.
At the PCR hearing on June 3, 2005, defendant testified that his trial counsel was ineffective because counsel failed to investigate letters defendant received from his co-defendant, Shaheed Dotson, implicating another individual, "Bopbop," in the carjacking. Defendant claimed further that he never reviewed a copy of the discovery in the case, never reviewed trial strategy with trial counsel, never "practice[d]" his testimony, and trial counsel ...