On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 02-09-1280-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Winkelstein and Gilroy.
Defendant, Deborah Kuna, appeals from Judge Citta's June 29, 2006 order denying her petition for post-conviction relief.
On appeal, defendant raises the following arguments:
1. Rule 3:22-4 does not bar defendant's claim.
2. The proofs elicited during the plea colloquy did not satisfy first-degree robbery, rendering defendant's conviction invalid as a matter of law.
A. The Facts Did Not Establish That Defendant Purposely Attempted to Inflict "Serious Bodily Injury" on the Victim.
B. The Use of Mace Did Not Constitute a "Deadly Weapon."
3. Defendant received ineffective assistance of trial or appellate counsel because counsel failed to challenge the sufficiency of the first-degree robbery conviction.
We affirm substantially for the reasons expressed by Judge Citta in his thorough and well-reasoned oral opinion on June 23, 2006.
On September 1, 2002, defendant and two male co-defendants committed a home invasion robbery on a seventy-eight-year-old woman in a retirement community. Defendant provided one of the men with a can of spray mace to use during the robbery. After defendant knocked on the door requesting to use the telephone, a co-defendant pushed his way inside, and sprayed the victim with mace; defendant heard the victim screaming in fear. Defendant and her co-defendants stole approximately $600 from the victim's home.
An Ocean County grand jury indicted defendant and her co-defendants, charging them with second-degree conspiracy, N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1, N.J.S.A. 2C:2-6 (count two); second-degree burglary, N.J.S.A. 2C:18-2, N.J.S.A. 2C:2-6 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), N.J.S.A. 2C:2-6 (count four); and third-degree theft, N.J.S.A. 2C:20-3, N.J.S.A. 2C:2-6 (count five). On January 27, 2003, in return for the State's agreement to cap her sentence at fifteen years, with an eighty-five percent period of parole ineligibility and a five-year period of parole supervision subject to the No Early ...