August 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAKETRICK LEAKS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-10-1701.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges A. A. Rodríguez and Collester.
Defendant Daketrick Leaks appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
In January 2001, following a jury trial, defendant was convicted along with co-defendant Deon L. Williams, of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 15-1; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; third-degree eluding the police, N.J.S.A. 2C:29-2b; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and third-degree resisting arrest, N.J.S.A. 2C:29-2a. Judge Kevin G. Callahan imposed concurrent terms aggregating seventeen years with a NERA*fn1 parole disqualifier on all convictions except for eluding the police, on which he imposed a consecutive eight-year term. We affirmed on direct appeal, but remanded for a correction of the judgment of conviction. No. A-3593-00T4 (App. Div. October 20, 2003 certif. denied, 453 (2004). The proofs presented by the State can be summarized as follows. On June 23, 1999, at approximately 9:00 p.m., James Pierce was robbed on the corner of Myrtle Avenue and Martin Luther King Drive in Jersey City. Three men jumped out of a burgundy red minivan. One of the men, co-defendant Deon Williams, pointed a gun and ordered Pierce to "run it." Williams repeated the statement and then began emptying Pierce's pockets.
As Pierce was being robbed, he saw that defendant was robbing a second individual standing nearby. The other victim did not report the incident to the police, but did speak to Pierce immediately after the incident.
Defendant filed pro se a PCR petition alleging that he was denied the effective assistance of trial and appellate counsel. Ray Black, Esq., appeared on defendant's behalf. In a written opinion, Judge Callahan denied defendant's PCR petition.
Defendant appeals contending:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Failed To Raise An Objection To The Admission Of Evidence That Defendant Had Committed Additional Robberies On The Night In Question.
B. Trial Counsel Failed to Object To The Admission Of Other Crimes Evidence.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANT OF APPELLATE COUNSEL. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PROSECUTOR ENGAGED IN MISCONDUCT.
A. The Prosecutor Presented Prejudicial Other Crimes Evidence During Opening Statement And Through Inadmissible Hearsay.
B. The Prosecutor Improperly Presented Prejudicial Hearsay Evidence Through Testimony Regarding Police Radio Transmissions.
THE LOWER COURT ERRED IN NOT BARRING OTHER CRIMES EVIDENCE SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
We disagree with these contentions substantially for the reasons expressed by Judge Callahan in his June 27, 2006 written opinion. We agree that defendant has failed to show ineffective assistance of trial or appellate counsel pursuant to the Strickland/Fritz standard.*fn2 We also concur that defendant has not triggered the need for an evidentiary hearing pursuant to State v. Preciose, 129 N.J. 451 (1992).