On appeal from Superior Court of New Jersey, Law Division, Union County, 98-09-1324-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Collester.
Defendant appeals from the denial of his post-conviction relief (PCR) application alleging the following arguments:
POINT I -- TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE JURY CHARGE OF ROBBERY WHEREBY ESSENTIAL AND FUNDAMENTAL ELEMENTS OF THE CRIME WERE NOT MADE CLEAR TO THE JURY.
POINT II -- TRIAL COUNSEL WAS INEFFECTIVE FOR LACK OF PRETRIAL INVESTIGATION AND PREPARATION WHEN HE FAILED TO CALL ALIBI WITNESSES WHO HAD THE POTENTIAL TO OFFER EXCULPATORY EVIDENCE.
POINT III -- DEFENDANT HAS SET FORTH A PRIMA FACIE CASE WHICH MANDATES REMAND FOR AN EVIDENTIARY HEARING.
POINT IV -- POST-CONVICTION RELIEF COUNSEL'S UNFAMILIARITY WITH THE RECORD CONSTITUTED INADEQUATE INVESTIGATION AND INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING THAT THE DEFENDANT BE REHEARD ON POST-CONVICTION RELIEF.
Tried to a jury, defendant was convicted of first-degree robbery and sentenced to a twenty-five year term of imprisonment with a twelve-year period of parole ineligibility. The facts adduced at trial constituted overwhelming proof of his guilt.
The victim testified that at approximately 2:45 p.m. on March 2, 1998, a man later identified as defendant walked into Tommy's Deli in Linden wearing a black ski mask. The owner of the deli was able to see the man's features before he pulled the mask down over his face. She began to scream, and the defendant pulled out what appeared to be a gun and demanded money from the drawer. The owner gave him $75 in denominations of ones and fives. When the man left the store, the owner immediately called police.
At police headquarters the deli owner was shown an array of six photographs, and she immediately identified the defendant.
He was arrested the following day and given his Miranda*fn1 warnings. At first he said he was in Elizabeth at the time of the crime. However, he subsequently admitted that he committed the robbery and gave a written statement saying that he held a black metal toy replica of a 9mm during the robbery and later threw it into the Rahway River.
At his trial defendant recanted his statement. He denied ever being at the deli and said he was working on a car in Rahway at the time of the offense. He said he had told police he had committed the robbery ...