On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 99-06-1056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 17, 2007
Before Judges C.S. Fisher and C.L. Miniman.
Defendant James F. Sumpter appeals from the denial of his application for post-conviction relief (PCR) following his conviction of two counts of third-degree burglary, third-degree attempted burglary, third-degree receiving stolen property, fourth-degree receiving stolen property, fourth-degree aggravated assault, and the disorderly persons offense of resisting arrest.*fn1 We affirmed the conviction and sentence on direct appeal. State v. Sumpter,*fn2 No. A-4246-99T4 (App. Div. Oct. 3, 2001). The PCR judge decided the application after hearing argument and declined to schedule a plenary hearing. We affirm.
The indictment grew out of a string of five robberies and one attempted robbery occurring in Jersey City on December 30, 1998, and January 4, 8 and 14, 1999. Defendant was caught red-handed immediately after the sixth robbery when the police responded to a robbery-in-progress call. When apprehended defendant had in his possession various items of stolen jewelry, a screwdriver, a mask, a cuticle cutter, a magnifying glass and a jeweler's loop.
In his PCR application, defendant argued that his trial counsel was ineffective because he did not properly cross-examine one of the victims and the arresting officer, did not investigate the arresting officer's background, failed to adequately investigate the facts and to subpoena another police officer, who would have testified that the witness in question could not identify defendant prior to trial.
In his thorough written statement of reasons, the PCR judge elected to entertain the PCR application even though it was filed slightly more than five years after defendant was sentenced. After setting forth the legal standard for securing PCR under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987), the judge concluded that trial counsel was not ineffective in conducting cross-examination. As to the first witness, the judge concluded that the he had never testified to an issue on which defendant claimed he should have been cross-examined and, as to the second issue relating to a word the witness used, the judge concluded it was just a misused word in the context of a witness for whom English was a second language.
As to the arresting officer, the PCR judge addressed defendant's claim that the officer should have been more thoroughly cross-examined with respect to the injuries he sustained when defendant resisted arrest. Because the trial court found that the officer had not been injured, defendant was convicted of only a disorderly persons resisting-arrest violation. Thus, the PCR judge found that there could be no prejudice to the defense from the failure to cross-examine on this issue. The judge also noted that defendant's claim that police officers routinely make false claims of injury when a defendant resists arrest was unsupported by any evidence presented with the PCR application.
The PCR judge then addressed defendant's next claim that trial counsel was ineffective because he did not make an opening statement. The trial judge had charged the jury at the beginning of the case that defendant was not obligated to make an opening statement, did not have to ask witnesses any questions and did not have to call any witnesses. The PCR judge found that this was a strategic decision made by trial counsel that was well within the scope of the rules. He determined that defendant had failed to show how the failure to make an opening statement would have changed the outcome of the trial when there was ample eyewitness testimony and defendant was caught with burglary tools and some of the stolen property.
Defendant also argued that he received ineffective assistance of appellate counsel, but the PCR judge rejected this claim as well. The PCR judge observed the defendant urged that his appellate counsel was ineffective because he did not raise an issue on direct appeal that trial counsel was ineffective. The judge concluded that because defendant had failed to prove trial counsel was ineffective, this claim must also fail.
For the reasons set forth, Petitioner has failed to prove by a preponderance of the evidence that he was denied effective assistance of counsel at the trial or appellate phase. After having reviewed the papers and hearing the respective arguments of counsel, it is the opinion of this Court that Petitioner's claim is not time barred under N.J.C.R. 3:22-12(a). Notwithstanding the fact that Petitioner's claim is timely, Petitioner has failed to sustain his burden on the merits such that a denial of relief is not ...