October 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SEAN BYRNE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-01-0104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Weissbard and S.L. Reisner.
Defendant Sean Byrne appeals from a May 12, 2006 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted of robbing a store owner at knifepoint after forcing the owner to drive him to Newark. At trial, defendant claimed the victim voluntarily gave him a ride to Newark. He admitted taking money from the man in order to buy drugs, but denied threatening him with a knife. The jury found defendant guilty of third-degree terroristic threats, N.J.S.A. 2C:12-3a; a disorderly persons offense as a lesser included offense of third-degree criminal restraint, N.J.S.A. 2C:13-2b; first-degree armed robbery, N.J.S.A. 2C:15-1; fourth- degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:5d; and third-degree possession of a weapon, a knife, for an unlawful purposes, N.J.S.A. 2C:39-4d. Defendant received an aggregate sentence of twelve years subject to the No Early Release Act (NERA), N.J.S.A. 2C:34-7.2, a term three years below the then-presumptive sentence for a first-degree crime. Defendant appealed his conviction and his NERA sentence raising the following issues on his direct appeal:
POINT I: BECAUSE THE COURT FAILED TO PROVIDE THE JURORS WITH THE NO EARLY RELEASE ACT'S DEFINITION OF "DEADLY WEAPON," THE COURT MUST RE-SENTENCE THE DEFENDANT TO A NON-NERA SENTENCE FOR THE ARMED ROBBERY.
POINT II: THE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO PROVIDE THE JURORS WITH A LIMITING INSTRUCTION THAT THEY WERE NOT TO CONSIDER THAT THE POLICE DEPARTMENT HAD THE DEFENDANT'S PHOTOGRAPH, THAT THE DEFENDANT HAD TWO NAMES, OR THAT THE DEFENDANT HAD A DRUG HABIT AS PROOF OF HIS PROPENSITY TO COMMIT THE CRIME AT BAR.
POINT III: THE COURT ERRED IN FAILING TO MERGE THE WEAPONS CONVICTIONS INTO THE CONVICTION FOR ARMED ROBBERY AND IN IMPOSING A SENTENCE ON A MERGED COUNT.
We affirmed his conviction and sentence. We concluded, however, that the weapons offenses should merge with the robbery conviction and remanded for the limited purpose of entering an amended judgment of conviction.
Defendant then filed the PCR petition which gave rise to this appeal. Defendant once again challenged his NERA sentence on a variety of grounds and claimed ineffective assistance of his trial and appellate counsel. Judge Kenny issued a lengthy and cogent oral opinion on May 11, 2006, rejecting all of defendant's contentions. She concluded that defendant's claims either were or should have been asserted in defendant's direct appeal, that in any event his trial counsel was not ineffective, and that his sentence was not excessive.
On this appeal from the denial of his PCR petition, defendant raises the following issues:
POINT I: THE DEFENDANT'S SENTENCE IS ILLEGAL AND UNCONSTITUTIONAL.
A. The Court Made Findings Of Fact To Enhance The Sentence.
B. The Defendant Did Not Receive Notice And Hearing Concerning The Imposition Of NERA.
POINT II: THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION.
A. The Defendant's Trial Attorney Rendered Ineffective Assistance Of Counsel By Failing To Object To Prejudicial Statements By The Prosecution And The Victim.
B. Defendant's Attorney Rendered Ineffective Assistance Of Counsel By Failing To Defend Against The Criminal Restraint Charge.
C. Defendant's Attorney Rendered Ineffective Assistance Of Counsel By Having His Client Take The Stand And Testify In His Own Behalf.
D. Defendant's Attorney Rendered Ineffective Assistance Of Counsel By Failing To Move For A Judgment Of Acquittal At The End Of The State's Case.
E. Defendant's Attorney Rendered Ineffective Assistance Of Counsel By Failing To Correct The Trial Court When It Failed To Define A "Deadly Weapon" Under The No Early Release Act.
F. Defendant's Attorney Rendered Ineffective Assistance Of Counsel By Failing To Argue That The Weapons Charges Should Have Been Merged Into The First Degree Robbery Charge.
G. Both Defendant's Trial Attorney And Appellate Attorneys Rendered Ineffective Assistance Of Counsel By Failing To Raise An Apprendi Violation Which Resulted In The Defendant Receiving An Enhanced Sentence.
POINT III: DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS ADVANCED IN THE DEFENDANT'S PRO SE BRIEF (ATTACHED TO THE APPENDIX AS DA.28-51) IN SUPPORT OF HIS PETITION FOR POST CONVICTION RELIEF.
Defendant's argument concerning the merger of the criminal restraint conviction with the robbery conviction was not raised before Judge Kenny on his PCR petition and thus may not be asserted on appeal. However, we also conclude the argument is without merit. We further conclude that defendant's remaining arguments, including those raised in his pro se brief, are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons stated in Judge Kenny's opinion. We add only the following comment. Defendant misconstrues the record in implying that his picture was referred to as a "mug shot" before the jury. The "mug shot" reference was made at sidebar not within the hearing of the jury. Moreover, this issue was raised and rejected on direct appeal.
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