On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-09-1560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant, Edward N. Carpenter, appeals from the Law Division's January 13, 2006 order denying defendant's motion for post-conviction relief (PCR). Defendant alleges ineffective assistance of trial, appellate and PCR counsel in violation of the right to counsel guaranteed by both the Federal and State Constitutions. U.S. Const. amends. VI, XIV; N.J. Const. art. I, ¶ 10.
Following a jury trial, defendant was found guilty on June 13, 2002 of conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:15-1 and 2C:5-2; armed robbery, contrary to N.J.S.A. 2C:15-1; aggravated assault, contrary to N.J.S.A. 2C:12-1b(4); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). Defendant was sentenced on August 2, 2002 to a fifteen-year term of imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the armed robbery conviction. Defendant was sentenced to two concurrent seven-year terms of imprisonment on the conspiracy and possession of a weapon for an unlawful purpose convictions, a concurrent one-year term of imprisonment on the aggravated assault conviction, and a concurrent seven-year term for the possession of a weapon for an unlawful purpose.
Defendant filed a notice of appeal to this court. We affirmed defendant's convictions but merged defendant's convictions for conspiracy, possession of a weapon for an unlawful purpose and aggravated assault with the armed robbery conviction for sentencing purposes. We affirmed defendant's sentence imposed on the armed robbery conviction. State v. Carpenter, No. A-3744-02T4 (App. Div. May 14, 2004). Defendant's petition for certification to the Supreme Court was denied on October 4, 2004. State v. Carpenter, 182 N.J. 140 (2004).
On December 17, 2004, defendant filed a petition for PCR and a pro se brief. Counsel was appointed and an amended petition and brief were filed. The petition was heard and denied by the court on January 13, 2006 in an oral opinion memorialized in the court's order of January 13, 2006. This appeal followed.
The evidence at trial recited in our opinion on direct appeal established that defendant and three co-defendants robbed a Kentucky Fried Chicken (KFC) store in Eatontown on December 2, 1999. "Two of the co-defendants were a current and former employee of the store. In addition to planning the robbery, defendant entered the premises wearing a mask and armed with a BB gun that he aimed at the victims and pulled the trigger causing the gun to make a 'popping noise.'" Carpenter, supra, A-3744-02T4 (slip op. at 3).
The testimony establishing these facts came from co-defendants Michael Ford, an employee of KFC, and Germaine Wharton, a former employee. Additional testimony was provided by the assistant manager of the KFC, Roy Kelly and employee Anthony Stone.
As respects defendant's role in the armed robbery, Ford testified that he, in accordance with the plan devised by him and the other co-defendants, left the rear door of the KFC opened at about 9:00 p.m. on December 2, 1999 so that defendant and co-defendant Marcell Gunther could enter the KFC to rob it. Gunther came in first followed by defendant. They had partial masks over their faces. They had handguns in their hands. Ford stated, "[t]he gun that [Gunther] pointed at me was silver, and it was, I guess, a real gun." Ford recognized defendant by his build, jacket and pants.
Kelly testified that while counting money in the office he felt a draft of cold air and as a result came out into the store, after placing the money he was counting from two of the store's three cash registers back into the office safe. Kelly stated:
A tall guy came running up from the right-hand side of the store which -- directly at me, saying don't move, don't move, had a gun pointing. Had a mask on his head. A tall guy. He was shooting, but it wasn't no bullets, I guess it was blanks at the time. We didn't really know.
Q: When you say shooting, what do you mean? What kind of noise was it?
A: It was aiming and was a popping noise.
Q: Where was he aiming at?
A: Directly at me; . . . .
I moved to the front around the front of the cooking area because I was nervous, and the other guy came to the front too with me and Anthony [Stone], and the guy -- the tall guy who had the gun followed me around to the front.
Q: . . . [T]his tall guy that you're talking about, can you give a description of that tall guy or do you remember giving a description to the police?
A: I know [he] was taller than me. I say about six one, six two. Weighing more than me at the time probably like a 160.
Q: Now, the tall guy, after he clicks his gun at you, where does he go?
A: The guy named Anthony that works there went running toward the front door. He was scared. A young guy. He went to try to get out the front door. He was scared for his life. The tall guy then went after him to bring him back in front for him to lay down.
Kelly additionally testified:
A When I turn[ed] around at first I thought it was just a joke, I didn't realize really what was happening to be honest with you . . . It was a small gun. Like real small right in the hand. They could hold it in hand. Wasn't nothing big.
At the time when I went down to the police station, I told them it looked like it was a little small black silver gun. It made a little pellet sound pop, pop, pop like.
Stone testified that the man, who had a gun and told him to get to the ground was "six foot, six one." He had a stocking over his head. He pointed a gun at him and told him to get on the ground. When Stone started to run, the man grabbed him and again told him to get on the ground. He got on the ground and covered his head. While the gun was pointed at him he heard "like two or three clicks like of pulling a trigger, but no bullets."
Wharton testified as to the guns defendant and Gunther had in their hands when they perpetrated the robbery. He described the guns as two black BB guns, one small, one larger.
Defendant argued in his PCR petition that his NERA sentence was illegal because there was no evidence that the weapon used was a deadly weapon within the meaning of N.J.S.A. 2C:43-7.2. In his amended petition, defendant modified that ground to a contention that his trial counsel was ineffective for failing to call an expert "to address the inoperability issue." Defendant also contended that his trial counsel had been ineffective because he failed to "discuss sentencing exposure" with him.
With regard to the operability issue, the PCR judge recited some of the evidence adduced at the trial and the court's charge to the jury, before finding there was sufficient evidence in the record to support the jury's verdict on operability. The judge thereupon denied the petition. The court stated:
First of all, I look at what was in place at the time, the NERA statute. The NERA, No Early Release Act statute stated, "the court, in imposing the sentence of incarceration for a crime of the first or second degree, shall fix a minimum term of 85 percent of his sentence, during which time the defendant shall not be eligible for parole if a crime is a violent crime."
And then the statute goes on to define violent crimes three ways. Any crime in which the actor causes death or serious bodily injury; where the actor uses or threatens the immediate use of a deadly weapon; any aggravated sexual assault or sexual assault in which the actor uses or threatens the immediate use of physical force. The second one applies where the actor uses or threatens the immediate use of a deadly weapon.
In State v. Austin, [335 N.J. Super. 486 (2000), certif. denied, 168 N.J. 294 (2001),] . . . it was determined that an inoperable BB gun was not a deadly weapon for NERA purposes. [Defendant] argues that there was a question of operability of the weapon because, especially because the weapon was never recovered. He also says that the following testimony was dispositive of his argument. That's from one of the people, one of the victims, one of the people in the place was Roy Kelly. "He was shooting but there wasn't no bullets. I guess it was blanks at the time. I really don't know."
"When you say shooting, what do you mean?" is the [next] question. "What kind of noise was this?"
"Answer: It was aiming and a popping noise."
"Can you describe the gun you saw?" "Answer: At the time when I went down to the police station I told them it looked like a little black, silver gun. It made a ...