On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Ind. No. 96-10-1570.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
Defendant Edwin Torres appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
In November 1998, a jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree kidnapping, N.J.S.A. 2C:13-1(a); first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; second-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree conspiracy to commit armed robbery and armed burglary, N.J.S.A. 2C:5-2; second-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree theft of an automobile, N.J.S.A. 2C:20-7; third-degree theft of an automobile, N.J.S.A. 2C:20-7; third-degree theft of movable property, N.J.S.A. 2C:20-7; and third-degree automobile theft, N.J.S.A. 2C:20-3. These convictions stemmed from a three-month burglary crime spree that culminated in the fatal death of Howard Lewis, a resident in the third home burglarized. Lewis asphyxiated on his own vomit after being bound by defendant and beaten by co-defendant Afrim Tairi.
Prior to trial, defense counsel moved to suppress statements defendant made to police, arguing that the statements were involuntarily given while defendant was under the influence of drugs and alcohol. The motion was denied and the statements introduced before the jury during trial. Although defendant's cousins were available to testify as to their observations of defendant at the time of his arrest, defense counsel chose not to call them as witnesses.
Defendant was sentenced to an aggregate term of life plus sixty-nine years with a sixty-year parole disqualifier. We affirmed the conviction and sentence imposed in an unpublished opinion. State v. Torres, No. A-5292-98T4 (App. Div. December 10, 2001). The Supreme Court denied defendant's petition for certification in an order filed February 14, 2002. State v. Torres, 171 N.J. 338 (2002).
Defendant filed a pro se petition for PCR on April 25, 2002, arguing that his trial counsel was ineffective because he (1) did not properly investigate his claim that he was too intoxicated at the time of his arrest to have made a knowing and voluntary waiver of his rights under Miranda*fn1 or to have given a knowing and voluntary statement about his involvement in the offenses; (2) failed to call witnesses who were available to testify and who had personal knowledge of his physical and mental condition at the time of his arrest; and (3) in addition to telling the jury that he was guilty of some of the charges, also told the jury that he would testify, but then told him that he could not testify. Additionally, defendant claimed the prosecutor committed prosecutorial misconduct and that the court gave improper jury instructions. Finally, defendant argued that the attorney assigned to represent him in connection with the direct appeal had limited contact with him prior to submitting a brief on his behalf and failed to argue that trial counsel was deficient despite the clear showing of trial counsel's deficiencies in the record.
After hearing oral argument, the PCR judge denied defendant's request for an evidentiary hearing and also denied PCR relief to defendant. In a written opinion, Judge Conte ruled that "[d]efendant has failed to present any prima facie evidence that would require holding an evidentiary hearing. Arguments raised by the defendant are naked allegations in which he has not corroborated with any proof." The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE COURT ERRED WHEN IT REFUSED TO GRANT DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF.
A. THE COURT ERRED IN ITS RULINGS DENYING THE DEFENDANT'S PETITION FOR ...