On appeal from Superior Court of New Jersey, Law Division, Burlington County, Ind. No. 99-03-0134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Lisa and Simonelli.
Defendant Walter Houston appeals from the order of August 7, 2006, denying his petition for post-conviction relief (PCR).
A jury convicted defendant of first degree armed robbery, contrary to N.J.S.A. 2C:15-1a(1). Defendant is serving an eighteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his conviction and sentence. We affirmed. State v. Houston, No. A-2551-01T4 (App. Div. October 30, 2003), certif. denied, 179 N.J. 309 (2004).
Defendant filed a PCR petition, which Judge LeBon denied without an evidentiary hearing. On this appeal, defendant raises the following arguments:
The trial court erred by denying Mr. Houston's petition for post-conviction relief and it should have ordered an evidentiary hearing to evaluate the merits of the ineffective assistance of counsel claim.
Mr. Houston was denied the effective assistance of post-conviction relief counsel as well and his petition should be granted and his conviction reversed, or, the matter should be remanded for a new post-conviction hearing and new counsel should be assigned. [Partially raised below.]
We reject these arguments and affirm.
Defendant was a suspect in an armed robbery, and was identified by two eyewitnesses through a photo array. He also gave a voluntary confession to the police admitting his culpability. He first contends trial counsel was ineffective for failing to object to the out-of-court identification contained in the photo array, and appellate counsel was ineffective for failing to raise this ineffectiveness. This contention lacks merit. On defendant's direct appeal, we affirmed the admissibility of the out-of-court photo array identification of defendant. Thus trial counsel's performance was not deficient and any challenge by appellate counsel would have failed. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
Defendant next contends trial and appellate counsel were ineffective for failing to object to the first degree robbery jury charge because his indictment had been amended to second degree robbery. This contention also lacks merit. The indictment was not amended to a second degree crime as defendant alleges. Rather, the language of the charge was amended to charge defendant with the proper subsection of the first degree crime of robbery. Thus the indictment was amended to correct an error, defendant was not charged with a different offense, and he was not prejudiced because he had notice that he was being charged with first degree robbery. R. 3:7-4.
Defendant next contends that trial and appellate counsel were ineffective for failing to object to a police detective's testimony that he knew defendant from "past contacts," or to request a curative instruction. We disagree. Trial counsel's failure to immediately object to this testimony or request a curative instruction was a strategic decision. He did not want to call the jury's attention to the testimony or highlight it. A valid conviction will not be overturned merely because defendant is dissatisfied with counsel's exercise of judgment during trial. State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), (citing State v. ...