On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, 04-05-00434-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 13, 2007
Before Judges Collester and C.L. Miniman.
Defendant was charged in a four-count indictment with first-degree armed robbery in violation of N.J.S.A. 2C:15-1, second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a), third-degree possession of a firearm without a permit in violation of N.J.S.A. 2C:39-5(b), and fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4). Defendant was convicted of first-degree armed robbery and was acquitted of the three other charges. At the time of sentencing the judge treated defendant as a second-degree offender and imposed a sentence of eight years in state prison. The term of imprisonment was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requiring defendant to serve eighty-five percent of the sentence before becoming eligible for parole. In addition, the judge imposed five years of parole after release, as required by NERA for first-degree offenses.
The evidence at trial established that defendant pulled into a gas station and requested $15 worth of gasoline. The victim pumped the gas, but payment was not forthcoming. Defendant tendered partial payment of $3.75. Defendant purported to make two telephone calls. He refused to provide security, such as a credit card or driver's license, to ensure payment of the balance due. The victim tried to prevent defendant from leaving the gas station, but defendant demanded the money in the cash register and pointed an object at the victim. The victim moved out of the way and defendant exited the gas station. The victim recorded the license plate number of the vehicle. Defendant was quickly apprehended and the victim was brought to the scene of the arrest and identified defendant as the perpetrator.
At the police station the police apprised defendant of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and defendant signed a Miranda waiver form at 1:00 p.m. The police matched defendant's fingerprints with ones on the public telephone at the gas station. Defendant admitted that he had been at the gas station, but denied that he possessed a weapon, telling the police that he had only a hat rolled up to look like a gun. The police found no gun in defendant's vehicle although they did find a hat. Defendant explained that he had no money and was under a lot of stress from financial problems. He claimed that he used the pay phone to call someone to bring money to the gas station. He was on his way to his girlfriend's home when he was apprehended. Defendant's testimony at trial was similar to his statement to the police.
Defendant presents the following issues for our consideration:
POINT I - DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL (Not Raised Below).
POINT II - THE TRIAL COURT ERRED IN LIMITING LATISHA PILGRIM'S RECITATION OF THE CONTENTS OF THE TELEPHONE CONVERSATION WITH [DEFENDANT].
The basis for defendant's claim of ineffective assistance of counsel is an alleged failure to present a diminished-capacity defense based on defendant's attention-deficit, hyperactivity disorder and potentially diminished intelligence quotient. Defendant's counsel presented some information about his mental capacity at sentencing, but defendant contends that his attorney should have mounted a full-blown diminished-capacity defense to criminal responsibility.
In Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), the United States Supreme Court explained the Sixth Amendment's guarantee of effective assistance of counsel for every criminal defendant. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant by causing an unfair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).
A defendant satisfies the first prong if he demonstrates that counsel's performance "fell 'outside the wide range of professionally competent assistance.'"
[State v.] Castagna, . . . 187 N.J. [293,] 314 [(2006)] (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). To do so, the defendant must overcome a "strong presumption" that counsel exercised "reasonable professional" judgment and "sound trial strategy" in fulfilling his responsibilities. Ibid. (citation omitted). We recognize that "'[j]udicial scrutiny . . . must be ...