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State v. Scarborough

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 22, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RANDY SCARBOROUGH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-02-0589.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 12, 2008

Before Judges Graves and Alvarez.

Defendant Randy Scarborough appeals from an order dated December 13, 2006, denying his petition for post-conviction relief (PCR). On appeal, defendant presents the following arguments:

POINT I.

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION BECAUSE TRIAL AND APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY PREJUDICING DEFENDANT. IN THE ALTERNATIVE, BECAUSE DEFENDANT PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF TRIAL AND APPELLATE COUNSEL, THE PCR COURT ERRED BY FAILING TO HOLD AN EVIDENTIARY HEARING.

A. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO INFORM DEFENDANT THAT HE FACED AN EXTENDED TERM IF HE WAS CONVICTED AT TRIAL WHICH PRECLUDED DEFENDANT FROM PROPERLY EVALUATING WHETHER TO ACCEPT A PRE-TRIAL PLEA OFFER OR PROCEED TO TRIAL.

B. TRIAL COUNSEL WAS INEFFECTIVE BY MAKING SEVERAL PREJUDICIAL REMARKS AGAINST DEFENDANT DURING HER OPENING STATEMENT AND SUMMATION.

C. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO CROSS-EXAMINE SARAN KABA REGARDING HER PRIOR FALSE ROBBERY ACCUSATION AGAINST DEFENDANT.

D. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO CALL A FAVORABLE WITNESS AT TRIAL.

E. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO PROPERLY CONSULT WITH DEFENDANT AND ADVISE HIM REGARDING WHETHER TO TESTIFY ON HIS OWN BEHALF.

F. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO FILE OR PURSUE PRE-TRIAL MOTIONS.

G. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO RAISE ANY MITIGATING FACTORS DURING SENTENCING.

H. APPELLATE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISE ALL APPROPRIATE ISSUES.

I. CUMULATIVE ERRORS BY TRIAL AND APPELLATE COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND THE DENIAL OF A FAIR TRIAL.

J. ALTERNATIVELY, THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.

POINT II.

DEFENDANT'S PETITION SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATION[S].

A. DEFENDANT'S PETITION IS NOT TIME-BARRED.

B. DEFENDANT'S PETITION IS NOT PROCEDURALLY BARRED BY R. 3:22-4 OR R. 3:22-5.

After considering these contentions in light of the record, the applicable law, and the trial court's findings and conclusions, we are satisfied defendant's arguments do not warrant extended discussion. R. 2:11-3(e)(2). We agree with the trial court's evaluation of defendant's petition, and we affirm substantially for the reasons stated by Judge Vichness in his oral decision on December 13, 2006, with only the following comments.

Defendant's jury trial took place on September 10, 11, and 12, 2002. Defendant did not testify and no witnesses were called on his behalf. On September 12, 2002, the jury found defendant guilty of one count of first-degree robbery, third- degree terroristic threats, and fourth-degree resisting arrest.

The jury also found defendant guilty of lesser included offenses of second-degree robbery, two counts of third-degree theft from person, and two counts of disorderly persons simple assault. Prior to sentencing, the court granted the State's motion for an extended term on the first-degree robbery conviction, and defendant was sentenced to a thirty-year prison term, with twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Concurrent sentences were imposed on each of the remaining offenses. Defendant appealed and, in an unpublished opinion, we rejected defendant's contentions that: (1) there was insufficient evidence to support his first-degree robbery conviction; and (2) the trial court erred in imposing an extended term. State v. Scarborough, No. A-2170-02 (App. Div. Nov. 25, 2003). Certification was denied by the New Jersey Supreme Court on February 27, 2004. State v. Scarborough, 179 N.J. 312 (2004).

On defendant's direct appeal, we summarized the facts of the case as follows:

On September 15, 2001 at approximately 5:00 p.m., defendant entered the S.K. African Hair Braiding Salon in Newark, attempting to sell a watch and a ring to the patrons and employees. Unsuccessful in his efforts, he left the salon. Two or three hours later, while there were still several employees and customers in the store, one of the employees, Bintu Shiriff, went outside of the salon to pull down the security gate and to begin locking the business up for the night. She saw defendant standing near the entrance, speaking with someone in a parked vehicle and she recognized him as the man who had been in the store earlier. As she turned and entered the store, which she had not finished locking up, defendant came up quickly behind her, again entering the salon. She saw him pull a scarf up over the lower part of his face as he entered and immediately concluded that he was going to rob her and the others inside. She ran toward the telephone to call the police, but defendant pulled the telephone from her hands and threw it to the floor, hitting her in the face as he did. At the same time, he demanded that she give him money. When Shiriff told him that she had no money, he grabbed her by the blouse and said that if they did not get the money for him, Shiriff "would be the first person he [would] kill."

Sara Kaba, who apparently owned the business, and who was seven and one-half months pregnant at the time, offered defendant her jewelry, which he refused, insisting that they give him money. She shouted in her native language, which defendant did not understand, to a customer who was in the rest room and who had a cell phone, that they were being robbed and that she should call the police. Shiriff tried to protect Sara Kaba from being hit because she was pregnant, and defendant hit Shiriff again. Defendant then tried to take a bag away from Sara Kaba, in which the day's proceeds were kept. As they struggled, he pushed Sara Kaba against a sink with sufficient force that the sink was pulled out of the wall and Sara Kaba fell to the floor. Defendant then forcibly took a wallet from Abraham Kaba, Sara's cousin and pushed Fanta Kaba, Sara Kaba's fourteen-year-old daughter, into a chair as she tried to intervene.

Throughout the incident, according to all three of the women, each of whom testified at the trial, defendant kept one hand in his pocket, threatening to kill them if they did not cooperate. . . .

After about fifteen or twenty minutes of attempting to force the people in the salon to turn over money, defendant grabbed several pocketbooks that were on a shelf and left the salon with them. He was apprehended, just outside of the salon and still holding the pocketbooks, by a detective who was responding to the call from the patron in the rest room and an off-duty police officer who was nearby. Their subsequent search of defendant's person revealed that he was not carrying a gun.

[Scarborough, supra, slip op. at 3-6 (first alteration in original).]

Thus, the evidence of defendant's guilt was overwhelming. Defendant was positively identified by three of the victims, and he was in possession of the victims' property when he was apprehended by the police just outside of the hair salon. To successfully argue trial counsel did not provide the level of assistance required under the Sixth Amendment, a "defendant must show that counsel's performance was deficient" and "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).

In the present matter, Judge Vichness, who presided over defendant's trial, concluded that defendant failed to satisfy both prongs of the Strickland/Fritz test, and the record fully supports that determination. "Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists." State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). Additionally, defendant's claim that his appellate counsel was ineffective is equally without merit.

Affirmed.

20080522

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