On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-01-0079.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Lisa and Alvarez.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. The indictment charged defendant with eight counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and other offenses, arising out of a spree of armed robberies at various Chinese restaurants in Jersey City and Bayonne between November 28, 2001 and December 28, 2001. Defendant was tried before Judge Callahan and a jury. One of the armed robbery counts was dismissed. Defendant was convicted of six of the seven armed robbery counts that were tried, one count of conspiracy to commit armed robbery, and one count of aggravated assault. The jury acquitted him of one count of armed robbery. The judge imposed concurrent sentences on most counts, but sentenced two armed robbery counts consecutive to each other, each with a twenty-year sentence subject to an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Therefore, defendant's aggregate sentence was forty years imprisonment, of which he must serve at least 85%, or thirty-four years, before being eligible for parole. Defendant appealed, and in an unreported decision we affirmed his conviction, but remanded for reconsideration of sentence in accordance with State v. Natale, 184 N.J. 458 (2005).*fn1 State v. Jackson, No. A-4684-03T4 (App. Div. Nov. 10, 2005).
Defendant filed his PCR petition on February 1, 2006, alleging ineffective assistance of trial and appellate counsel.
The matter came before Judge Venable. Without granting an evidentiary hearing, she denied the petition for reasons set forth in an oral opinion on September 28, 2006. The denial was memorialized in an order of October 13, 2006. This appeal followed.
In the appellate brief filed by his counsel, defendant argues:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A) TRIAL COUNSEL FAILED TO ARGUE THAT DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE DEFENDANT WAIVED HIS MIRANDA RIGHTS AFTER GIVING THE STATEMENT.
B) TRIAL COUNSEL FAILED TO CROSS-EXAMINE THE VICTIMS THOROUGHLY ON THEIR IDENTIFICATION OF DEFENDANT.
C) TRIAL COUNSEL FAILED TO HIGHLIGHT THE VICTIMS' DISCREPANCIES IN THEIR DESCRIPTIONS OF THE PERPETRATOR.
D) TRIAL COUNSEL FAILED TO FILE MOTIONS TO DISMISS THE INDICTMENT.
E) TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION.
POINT II THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
A) APPELLATE COUNSEL FAILED TO CHALLENGE THE ADMISSION OF DEFENDANT'S PHOTOGRAPH.
B) APPELLATE COUNSEL FAILED TO CHALLENGE THE ADMISSION OF DEFENDANT'S STATEMENT.
C) APPELLATE COUNSEL FAILED TO ARGUE ALL OF DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT IV THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
POINT V THE LOWER COURT ERRED IN NOT CONDUCTING AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
In a pro se supplemental brief, defendant also argues:
ONE: DEFENDANT WAS UNFAIRLY PREJUDICED BY THE ABUSE OF DISCRETIONARY POWER BY ALLOWING USE OF DEFENDANTS CUSTODIAL STATEMENT PRIOR TO THE CONSENTUAL SIGNING OF WAIVER.
TWO: DEFENDANT WAS DENIED THE BENEFIT OF DUE PROCESS BY THE COURT STANDING ON THE USE OF FLAWED IDENTIFICATION PROCESS.
THREE: DEFENDANT WAS DEPRIVED OF FUNDAMENTAL FAIRNESS WHEN THE TRIAL COURT PERMITTED COUNSEL TO ENTER INTO STATES STIPULATION REGARDING ACCURACY OF VICTIMS TESTIMONY.
FOUR: TRIAL AND COURT ON POST PROCEEDING FAILED TO DISMISS INDICTMENT FOR INSUFFICIENCY.
Defendant subsequently filed a letter with the court, bringing to our attention the Supreme Court's decision in State v. O'Neill, 193 N.J. 148 (2007). See R. 2:6-11(d).
We reject defendant's arguments and affirm.
The State's evidence demonstrated that the first four robberies occurred at one Jersey City establishment, previously frequented by defendant as a customer. We summarized the facts on direct appeal as follows:
The first armed robbery occurred on November 28, 2001, at the Yoan Fong restaurant in Jersey City. Tony Zhu was working at the restaurant when defendant entered with a gun and demanded money. Zhu testified that defendant pointed the gun at the employees and said "take the money out, take the money out." Zhu gave defendant money from the register, and defendant left. Zhu did not see defendant's face on that occasion.*fn2
Defendant returned to Yoan Fong two days later. Zhu was again working at the restaurant. He testified that defendant came in, pointed a gun at him, and demanded money. Zhu gave defendant the money from the register and defendant left. Defendant returned to Yoan Fong again on December 6, 2001. On this occasion, defendant climbed over the counter near the front of the restaurant and came to the back where the employees were eating. Defendant pointed a gun at the employees and demanded money, and again Zhu provided money from the register and defendant left.
Zhu testified that during the November 30 and December 6, 2001 incidents, he was able to see defendant's face in the course of the robberies. Zhu also recognized defendant as a customer in the restaurant "once or twice." He was able also to identify defendant in a photo array and at trial.
On the evening of December 22, 2001, defendant returned to Yoan Fong. On this occasion, Yun Yang, a deliveryperson for the restaurant, was on his bicycle returning to the restaurant after making a delivery. Defendant stopped Yang on the sidewalk in front of the restaurant, demanded money, and struck Yang on the forehead and the back of the head with a gun. Yang fell to the ground, and defendant then pointed the gun at Yang's right temple and neck. Yang then provided defendant with the twenty dollars he had in his possession. Defendant searched Yang for more, and upon finding nothing, left. Yang testified that he had seen defendant in the restaurant "many times," and identified defendant from a photo array and at trial.
Also on December 22, 2001, defendant robbed the Cheun Xing restaurant in Jersey City. At the time of the robbery, Li Li Xu, the owner of the restaurant, was in her second-floor apartment directly above the restaurant. Xu observed the robbery occurring via a monitor in her apartment that displayed the video of a security camera in the restaurant. Upon seeing the robbery in progress, Xu ran downstairs with a phone, saw defendant leaving, and called the police. Xu authenticated the video recording at trial before it was played for the jury.
On December 28, 2001, defendant committed robberies number six and seven. First, at approximately 10 p.m., defendant entered the Neptune Café in Jersey City, also owned by Li Li Xu. Xu was working that evening, and observed defendant enter, armed with a gun. Although defendant covered his face with a mask, Xu saw defendant's clothing, including a black jacket with a pattern on the back. Xu watched as defendant struck two of her employees, took money, and left the restaurant. Xu also authenticated a video of this robbery, taken by a security camera in the restaurant, which was likewise played for the jury.
Defendant's second robbery of the evening took place at the Kung Hing restaurant in Bayonne. At approximately 11 p.m., Xiaomin Chen and his sister were working in the Kung Hing restaurant when defendant entered, wearing a ski mask and holding a gun. According to Chen, defendant ran into the restaurant, ordered Chen to open the cash register, hit Chen on the head with the gun's handle, and again ordered Chen to open the register. When Chen complied, defendant grabbed the cash and ran. Chen testified at trial ...