June 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IVAN EDWARDS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2008
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 because he was beaten and held without food for two days.
We upheld defendant's conviction and sentence on direct appeal. Notably, defendant did not raise the issue of the court's charge of robbery at that time. Therefore, his first argument is barred by R. 3:22-4, which states:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Because the exceptions are not applicable, defendant's argument on the jury charge is barred from our consideration. See, e.g., State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd in part and modified in part, remanded by, 162 N.J. 240 (2000). In any event, after review of the charge given by Judge Barisonek, we conclude that it was proper in the circumstances of this case.
Defendant next argues that his attorney was ineffective for lack of pre-trial investigation and preparation because he failed to call two alibi witnesses, "the Tates." He contends that they would have discredited the identification of defendant and the timeline of the crime, and that he was entitled to their testimony at an evidentiary hearing. However, as noted by Judge Barisonek, the proposed testimony by the Tates was consistent and corroborative of the State's proofs as well as the defendant's confession. Judge Barisonek aptly commented that, "[i]t made absolutely no sense for his attorney to in fact call the Tates as witnesses in the case." We agree. Defendant did not present a prima facie claim in support of his PCR application under the standard of Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984), and he was therefore not entitled to an evidentiary hearing. Finally, defendant's argument that he received ineffective assistance of PCR counsel is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).