On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 98-12-1654.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker, and Koblitz.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury found defendant guilty in 1999 of conspiracy to commit robbery, N.J.S.A. 2C:5-2; 15-1; unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and robbery while armed, N.J.S.A. 2C:15-1. Defendant was sentenced in January 2000; at sentencing, the trial court granted the motion to sentence defendant to an extended term, N.J.S.A. 2C:44-3(a) and imposed an aggregate sentence of sixty years, subject to the terms of the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, and we affirmed his convictions but remanded for reconsideration of his sentence. State v. Battle, No. A-3512-99T4 (App. Div. Feb. 15, 2002). The Supreme Court denied certification. State v. Battle, 172 N.J. 356 (2002). When defendant appeared before the trial court for reconsideration of his sentence, the trial court again sentenced him to sixty years in prison but reduced the period of parole ineligibility to twenty-five years. Defendant again appealed, and following a hearing on an Excessive Sentence Oral Argument calendar, we again affirmed.
The Supreme Court again denied certification. Defendant thereafter filed a petition for post-conviction relief. The trial court conducted a plenary hearing at which defendant and his trial counsel both testified. Defendant now appeals from the trial court order denying his petition.
In our earlier opinion affirming defendant's convictions, we gave the following factual recitation of the facts underlying defendant's convictions.
The charges arose out of an armed robbery at the Lube Express in Edison where Raymond Harper was the assistant manager. At about 5:30 p.m. on October 4, 1998, Harper was doing paperwork and working late to complete his invoice sheets. Patrick Allen, a Lube technician, was working with Harper. Harper received a telephone call asking if he would keep the store open for the caller to buy oil. Harper said, "No, we're closing out. If you get here by the time we close out, fine." Harper did not know the identity of the caller.
Shortly thereafter, a man with a purple bandana around his face walked in holding a gun. The man ordered Harper and Allen into the back room and demanded their money. Harper gave the intruder the shop key and told him, "The money's in the draw[er] in the safe." The intruder stepped outside and called to someone by the name of "Saleem." Harper knew "Saleem" was the street name for defendant who was a former employee at Lube Express. The man referred to as "Saleem" was also masked when he joined the first man in opening the cash drawer and the safe.
"Saleem" came into the back room, pulled down a set of concealed stairs to the attic and ordered Harper and Allen up the stairs. Harper testified that the concealed stairs were known only to employees. At that point, Harper turned and attempted to grab the gun from the first man. As Harper was wrestling with him, Harper pulled off his mask. "Saleem" joined the fray and kept punching Harper until Harper let go of the first man and started wrestling with "Saleem." As Harper started to fight with "Saleem," Harper pulled "Saleem's" windbreaker over his head and "Saleem's" mask came off, enabling Harper to see his face. The other man was hitting Harper in the back of the head with the gun, causing the gun to break. Both intruders then fled.
In this appeal, defendant raises the following issues:
I. UNDER STATE V. BRANCH, 182 N.J. 338 (2005), DEFENDANT'S CONVICTION MUST BE REVERSED SINCE THE TESTIMONY OF DETECTIVE SPIELMAN REGARDING THE NCIC COMPUTER WAS INADMISSIBLE HEARSAY THAT VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION; FURTHER, TRIAL DEFENSE COUNSEL WAS INEFFECTIVE IN NOT OBJECTING TO THIS HIGHLY PREJUDICIAL TESTIMONY.
II. REVERSAL IS REQUIRED BECAUSE TRIAL DEFENSE COUNSEL WAS INEFFECTIVE WHEN, AT A PRETRIAL CONFERENCE, HE FAILED TO ADVISE DEFENDANT THAT HE WAS FACING A MANDATORY EXTENDED TERM IF HE WAS CONVICTED. THE JUDGE ALSO ERRED IN FAILING TO ADVISE THE DEFENDANT THAT HE FACED A MANDATORY EXTENDED TERM IF CONVICTED.
III. THE ERRONEOUS ADMISSION OF TESTIMONY TO THE EFFECT THAT A WARRANT HAD BEEN ISSUED FOR THE ARREST OF DEFENDANT REQUIRES REVERSAL SINCE IT SUGGESTED TO THE JURORS THAT A JUDGE HAD AT SOME POINT HEARD THE EVIDENCE AGAINST DEFENDANT AND HAD DETERMINED THAT SUFFICIENT CAUSE EXISTED TO PLACE HIM UNDER ARREST; ADDITIONALLY, IT WAS IMPROPER TO ADMIT EXTENSIVE TESTIMONY DESCRIBING THE CIRCUMSTANCES OF DEFENDANT'S ARREST. THE FAILURE OF TRIAL DEFENSE COUNSEL AND ...