On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-04-0748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges Stern and Lyons.
We affirm the order denying defendant's petition for post-conviction relief (PCR) substantially for the reasons expressed by Judge Paul M. De Pascale in his oral opinion of January 18, 2007, as supplemented herein.
Defendant was tried and convicted of first-degree robbery. At the hearing on the petition, defendant argued that his trial counsel was ineffective because (1) he did not present "any evidence to refute the claim [the victim] suffered serious bodily injury," (2) he failed to request a charge on second-degree robbery and various assaults as "lesser included offenses" and (3) counsel failed to ask for a downgraded sentence. The judge properly rejected these claims.
In finding defendant guilty of first-degree robbery, the jury was instructed that it had to find defendant was armed with a deadly weapon or "purposely inflicted or attempted to inflict serious bodily injury." See N.J.S.A. 2C:15-1(b). After returning its verdict that defendant was guilty of first-degree robbery, the jury was subsequently asked, for purposes of the No Early Release Act (NERA), if defendant used or threatened to use a deadly weapon or actually caused "serious bodily injury." See ibid. We vacated the NERA component of the sentence because there was insufficient evidence of actual "serious bodily injury."*fn1 That was because an attempt to cause serious bodily injury did not suffice for purposes of NERA at the time of offense. Defendant does not attempt to challenge the first- degree verdict based on the sufficiency of the proofs or because of the jury charge, and trial counsel's lack of challenge to the proofs regarding the injuries may well have helped provide the basis for vacation of the NERA component.
We agree with defendant, as we noted on the direct appeal, that a charge of second degree robbery would have been appropriate.*fn2 However, as we also noted on the direct appeal, the defense was that defendant did not participate in the crime and defendant himself did not want the instruction given. We declined to reverse or downgrade the conviction on the direct appeal because of the "invited error," and we find no demonstration sufficient to warrant an evidentiary hearing regarding the reasons for defendant's decision. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (discussing evidentiary hearings should be granted "to resolve ineffective-assistance-of counsel claims"). There is nothing in defendant's verified petition concerning discussions with counsel regarding the instruction or why defendant took the position he did. As developed in our opinion on the direct appeal, counsel urged defendant to request the second-degree charge notwithstanding that the critical issue in the case was only whether defendant committed the crime at all.
The trial judge granted the State's motion to impose a discretionary extended term under N.J.S.A. 2C:44-3(a). We are unconvinced that counsel could have prevailed in seeking a downgraded sentence under N.J.S.A. 2C:44-1(f)(2).
Defendant's brief does not specifically address the issues counsel should have raised, but did not, on direct appeal. As we reject defendant's present contentions, we cannot conclude they would have prevailed if raised on the direct appeal, albeit subject to a different standard of review. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2067, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).