December 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COREY SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, 96-10-3475.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Stern and Payne.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). He was initially sentenced, as a second Graves Act offender, to life imprisonment with twenty years before parole eligibility for kidnapping and a consecutive twenty-year term with ten years to be served before parole eligibility for aggravated assault.
He was acquitted and received concurrent sentences on other charges. We affirmed the convictions but remanded for new sentencing because the ineligibility term on the life sentence was illegal, as it had to be 25 years. State v. Swint, 328 N.J. Super. 236, 263 (App. Div.), certif. denied, 165 N.J. 492 (2000). On December 3, 2000, the sentence was modified so that the twenty-five year ineligibility term was imposed on the life sentence for kidnapping with a consecutive reduced fifteen-year sentence with five years to be served before parole eligibility on the aggravated assault, resulting in an aggregate sentence of life plus fifteen years with the same aggregate thirty years before parole eligibility. On December 6, 2006 Judge Vichness denied defendant's petition for post-conviction relief, but decided, out of an abundance of caution, to re-sentence defendant in light of State v. Natale, 184 N.J. 458 (2005). The sentence was not changed.
The proofs at trial are detailed in our opinion on the direct appeal, and need not be set forth again. State v. Swint, supra, 328 N.J. Super. at 245-48. On this appeal, defendant argues that "the court erred in denying defendant's petition for post-conviction [relief]" and "the court erred in not reducing the defendant's sentence."
The petition was directed to the failure of trial counsel to call the victim's treating physician (in an effort to show an inconsistency in the identification), failure to have objected to hearsay testimony by Detective Parkman about what the victim, Roshon Grundy, told him (again relating to the identification), failure to object to the jury charge and re-instructions, and failure of counsel to have filed a motion to suppress. As noted, PCR counsel was also permitted to make an argument addressed to sentencing in light of Natale.
The trial judge addressed all the defendant's contentions and we affirm the denial of PCR substantially for the reasons stated by Judge Vichness in his oral opinion of December 6, 2006. While we reject defendant's contentions and do not believe they warrant extended discussion, R. 2:11-3(e)(2), we add the following.
It is, of course, now well known that in order to succeed on a claim of ineffective assistance of counsel, defendant must demonstrate two facts. Defendant must show that counsel's performance was deficient and must also demonstrate that, but for these alleged deficiencies, the outcome at trial would have been different. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed. 2d 674, 695 (1984). This he does not do; nor does he provide a basis to warrant an evidentiary hearing because there is an insufficient showing of a Strickland violation. See State v. Preciose, 129 N.J. 451, 463 (1992). See also State v. Marshall, 148 N.J. 89, 158 (1997).
We agree with Judge Vichness that "it is inconceivable ... that a hospital record" would develop the identification of the perpetrator for purposes of treating the victim. There is no showing that any hospital or physician records reveal that Grundy advised the doctor of his assailants' names or that they did not include defendant. As to the statements to Detective Parkman by Grundy, we expressly concluded on the direct appeal "that there was no plain error." State v. Swint, supra, 328 N.J. Super. at 255. While the lack of "plain error" warrants consideration of counsel's conduct or performance in not objecting, we read Judge Vichness' opinion as concluding he would have overruled any hearsay objection. See 328 N.J. Super. at 247 Hence, the second prong of the Strickland test could not be satisfied. Moreover, Grundy identified defendant to the police.
We reach the same conclusion with respect to the jury instructions which we addressed at length on the direct appeal. 328 N.J. Super. at 256-61.
We expressly held on the direct appeal that the box cutter "was properly admitted" into evidence, and "relevant" to the issues before the jury. 328 N.J. Super. at 251, 252-53. As to defense counsel's failure to file a motion to suppress the box cutter, Judge Vichness explained that the law at the time of this trial would not have warranted the application, and defendant points to no decision which applies present State law retroactively to his case.
In sum, our review of the record convinces us that even if the performance of defendant's trial counsel was somehow deficient, the probable result of the case would have nevertheless been the same. Accordingly, we find no basis for reversing the denial of PCR based on defendant's claim of ineffective assistance of counsel.
Mandatory extended sentences for second Graves offenses are qualitatively different than the issue discussed in State v. Natale, 184 N.J. 458 (2005) because of the required finding of possession of a firearm during the commission of the offense, something which our Supreme Court had previously held could be decided by the judge. See State v. Camacho, 153 N.J. 54, 72-73, cert. denied, 525 U.S. 864, 119 S.Ct. 153, 142 L.Ed. 2d 125 (1998); State v. White, 98 N.J. 122 (1984). See also State v. Apprendi, 159 N.J. 731 (1999), rev'd, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed 2d 435 (2000). While that is no longer the case, here defendant was simultaneously convicted of a firearms offense (possession of a handgun for unlawful purpose), and in any event State v. Franklin, 184 N.J. 516 (2005) applied the Natale rule of "pipeline retroactivity." 184 N.J. at 540. See also State v. Perez, 348 N.J. Super. 322, 326 (App. Div.), certif. denied, 174 N.J. 192 (2002). Therefore, there is no merit to the sentencing claim.
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