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State v. Bounghares

February 5, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AHMED BOUNGHARES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-07-1444.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2008

Before Judges Rodríguez and Waugh.

Defendant Ahmed Bounghares appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In March 2000, defendant was convicted of several offenses arising from three separate episodes involving theft of merchandise from two department stores, Value City and Sears. In each instance, the State alleged defendant conspired with "another person, whose identity is unknown" to commit these offenses. These offenses include: third-degree conspiracy to commit theft of movable property, N.J.S.A. 2C:5-2 and 20-3(a); third-degree theft of movable property, N.J.S.A. 2C:20-3(a); third-degree conspiracy to commit theft of movable property in excess of $500, N.J.S.A. 2C:5-2 and 20-3(a); and second-degree robbery, N.J.S.A. 2C:15-1. All three episodes were captured on store security cameras. It is undisputed that defendant's image is shown on the videotapes.

Defendant did not appear at jury selection or the first day of trial, but was present for the second day when closing arguments were heard and the verdict was returned. The trial judge denied defendant's motion for a new trial and imposed the sentence. Defendant filed pro se a motion for reconsideration or change of his sentence pursuant to R. 3:21-10. The judge denied this motion.

Defendant appealed, alleging, among other things, ineffective assistance of trial counsel. We affirmed the conviction, but corrected the judgment of conviction so that the sentence imposed for the episode at Value City ran consecutive to the sentence imposed for the episodes at Value City, as the judge had intended. State v. Bounghares, No. A-4552-01T4 (App. Div. November 8, 2004), certif. denied, 182 N.J. 630 (2005).

Defendant filed, pro se, a first PCR petition. Assigned counsel filed a supplemental brief. The petition alleged: 1) the charge on robbery was defective, 2) defendant was not provided with an Arabic interpreter at trial, did not understand the proceedings and was unable to participate in his own defense; 3) trial counsel rendered ineffective assistance by failing to fully investigate the law and facts of the case and, consequently, failing to advise defendant of the risks of going to trial; 4) jury selection took place out of defendant's presence; 5) joinder of three offenses in one indictment was prejudicial; 6) ineffective assistance of appellate counsel; 7) the trial judge's failure to properly instruct the jury on the permissible and impermissible uses of other crimes evidence admitted pursuant to N.J.R.E. 404(b); and 8) trial counsel was ineffective by conceding an element of robbery in his opening statement.

Judge Anthony Mellaci heard oral argument, declined to hold an evidentiary hearing and denied the petition. The judge concluded that several of the arguments were procedurally barred by virtue of Rule 3:22-4, grounds not raised in prior proceedings; and Rule 3:22-5, grounds expressly adjudicated. Nonetheless, the judge considered the merits of the arguments and rejected them. The judge also found, based on the trial record, that trial and appellate counsels rendered effective assistance. The judge disposed of the factual allegation as to defendant's understanding of English by noting that, according to defendant's presentence report, defendant "speaks three different languages and he speaks English fluently."

On appeal, defendant contends that the post-conviction court erred in denying relief because: (a) the jury charge relating to robbery was defective and trial counsel failed to provide a factual defense to the robbery, and that appellate counsel was ineffective for failure to raise the issue of the defective jury charge on appeal; (b) defendant was prejudiced by the joinder of three offenses in one indictment as well as the trial court's failure to provide a Rule 404(b) limiting instruction; (c) trial counsel was ineffective by conceding an element of robbery in his opening without consulting his client; (d) trial counsel was ineffective by failing to advise defendant of his right to an interpreter at trial; and (e) appellate counsel was ineffective for failing to raise issues (a) and (b). We reject these arguments.

Defendant first contends that his claims were "not litigated on direct appeal and failure to raise all ineffective assistance of counsel claims on direct appeal did not procedurally bar claim in post-conviction proceeding." We disagree.

It is well-settled that a PCR petition is not a substitute for direct appeal. R. 3:22-3; State v. Marshall, 148 N.J. 89, 146 (1997). Thus, matters which may be resolved without reference to evidence outside the trial record must be pursued in a direct appeal. State v. Marshall, supra, 148 N.J. at 147. Moreover, any ground for relief not raised in a prior proceeding cannot be raised in a PCR petition "unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." R. 3:22-4.

Defendant's PCR claims regarding: the robbery jury charge as to robbery; alleged deficiencies in jury curative instructions; absence of an Arabic interpreter; defendant's absence during jury selection; and joiner of offenses were either raised and adjudicated on direct appeal, or could ...


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