On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 02-11-2404.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2007
Before Judges Cuff and Lintner.
On November 20, 2003, a jury found defendant, Litel Kelley, guilty on the following three counts of a six-count Atlantic County indictment: first-degree armed robbery, N.J.S.A. 2C:15-1 (Count One); second-degree possession of a weapon (a firearm) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Four); and fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (Count Five). His two co-defendants were acquitted of all charges. Defendant was sentenced to serve seventeen years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn1
Defendant filed his notice of appeal on March 5, 2004. While his appeal was pending, defendant moved for a temporary remand. We denied defendant's motion. However, we permitted him to elect to withdraw his appeal and proceed with his motion for post-conviction relief (PCR) with the understanding that if his PCR was unsuccessful he could reinstate the appeal. Defendant elected to withdraw his direct appeal without prejudice and proceed with his PCR application. The appeal was dismissed on December 1, 2004.
At his PCR hearing, defendant contended that his retained trial counsel was ineffective because he failed to file (1) pre-trial Wade*fn2 and Miranda*fn3 motions; (2) post trial motions for a new trial or judgment NOV; and (3) for a severance of his trial from that of co-defendants. Defendant also agued that counsel was ineffective because he did not properly prepare for trial by interviewing witnesses; obtaining the surveillance tapes from a convenience store, which would indicate he was not at the scene of the robbery; meeting and consulting with defendant; inspecting the scene; or interviewing the victim. The trial judge denied defendant's PCR application without conducting an evidential hearing. In an unpublished decision on June 29, 2006, we affirmed the judge's denial of defendant's PCR. On August 14, 2006, defendant moved to reinstate his direct appeal. We granted defendant's motion by order of August 16, 2006.
On appeal, defendant raises the following arguments:
DEFENDANT HAS A MERITORIOUS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
TRIAL COUNSEL'S FAILURE TO ADEQUATELY PREPARE FOR TRIAL CONSTITUTED INEFFECTIVENESS OF COUNSEL.
THE POST CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF ...