On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-02-0158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant, Henry Poole, appeals the Law Division's order of October 2, 2007, denying his petition for post-conviction relief ("PCR"). The PCR application related to defendant's 2002 conviction, after a jury trial, of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). We affirm.
We need not repeat the underlying facts, which were discussed at length in our unpublished opinion affirming defendant's conviction on direct appeal. See State v. Poole, No. A-1374-02T4 (App. Div. June 6, 2005), certif. denied, 186 N.J. 256 (2006). It will suffice to say that the jury found that defendant, along with two other men, had participated in the robbery of Juan Negron on the streets of Elizabeth in the early morning hours of October 14, 2000. After Negron was accosted at knifepoint, his attackers pulled him around a corner, went through his pockets and grabbed his wallet. The attackers then fled the scene in a truck, which the police stopped minutes later as it was going in the wrong direction down a one-way street. Defendant was one of the passengers inside the truck, along with a knife and several of Negron's personal items.
The jury rejected defendant's claim that he had not been involved in the robbery and that his presence in the truck was coincidental. He was sentenced to a merged sentence of thirteen years in prison, conditioned upon an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
On direct appeal, defendant raised the following arguments, all of which we found to lack merit:
POINT I BECAUSE THE STATE PRESENTED NO EVIDENCE THAT DEFENDANT WAS IDENTIFIED AS ONE OF THE ROBBERS, DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT II BECAUSE THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS ONE OF THE MEN WHO ROBBED THE VICTIM, HIS CONVICTIONS FOR ROBBERY AND WEAPONS OFFENSES WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. (Not Raised Below)
POINT III THE COURT'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD CONSIDER AS SUBSTANTIVE EVIDENCE THE VICTIM'S PRIOR INCONSISTENT STATEMENT THAT HE DID NOT REMEMBER ANY OF THE OTHER MEN FROM THE TRUCK DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)
POINT IV THE TRIAL COURT'S INSTRUCTION TO THE JURORS TO TREAT BOTH SIDES AS THEY WOULD WANT TO BE TREATED IN A CIVIL LITIGATION OVER MONEY, DILUTED THE STATE'S BURDEN OF PROOF, AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
POINT V THE COURT ERRONEOUSLY CHARGED THE JURY THAT IT MUST RETURN A UNANIMOUS VERDICT BECAUSE "ANY OTHER VERDICT WOULD BE AN ILLEGAL VERDICT." (Not Raised Below)
POINT VI THE JUDGE ERRONEOUSLY INSTRUCTED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCEN[C]E" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S ...