March 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARTEL JOHNSON, A/K/A HASSAN K. MUHAMMAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 97-10-2472-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Wefing and LeWinn.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was originally indicted for three counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and three counts of fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b).
The parties agreed that to avoid undue prejudice to defendant, a severance was required. He was initially tried in March 1998 on one count of first-degree robbery and charges of unlawful possession of a weapon and possession of a weapon for an unlawful purpose. That jury was only able to agree on a verdict of guilty to one count of unlawful possession of a weapon; a mistrial was declared with respect to the remaining counts. A second trial was conducted in June 1998, and that jury found defendant guilty of first-degree robbery, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. A negotiated plea resolved the remaining counts of the indictment. The trial court sentenced defendant to eighteen years in prison for robbery, subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The trial court also sentenced defendant to concurrent terms of incarceration for the remaining convictions.
Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Johnson, No. A-773-98 (App. Div. Oct. 7, 1999). The Supreme Court granted defendant's petition for certification to determine whether a jury was required to make the finding that a predicate offense is "violent" for purposes of sentencing under NERA as it stood at the time of these offenses. 166 N.J. 523, 527 (2001). The Court concluded that this jury did in fact make the necessary predicate finding, and it affirmed defendant's sentence. Id. at 545-46.
In May 2003, defendant, acting pro se, filed a petition for PCR. Counsel was ultimately assigned to represent defendant in connection with his petition. After hearing oral argument, the trial court denied the petition; it concluded defendant had not presented any basis to require a plenary hearing. This appeal followed.
On appeal, defendant raises the following arguments:
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE THE COURT PRECLUDED THE DEFENDANT FROM USING AN ALIBI DEFENSE AND APPELLATE COUNSEL FAILED TO ARGUE THAT THE COURT ERRED IN RULING AS SUCH.
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL FAILED TO OBJECT TO THE PHOTO ARRAY AND SUCH ARRAY OCCURRED IN A PREJUDICIAL MANNER.
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL AS TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S COMMENTS IN HIS OPENING ARGUMENT.
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL AS TRIAL COUNSEL FAILED TO PROPERLY CROSS-EXAMINE DETECTIVE DANIEL LASH.
THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE AS THE DEFENDANT WAS NOT SUBJECT TO THE NO EARLY RELEASE ACT DUE TO THE SUBJECT WEAPON BEING INOPERABLE AND NO EVIDENCE INDICATED THAT THE DEFENDANT OR THE BB GUN POSSESSED AMMUNITION.
THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE AS THE DEFENDANT RECEIVED A PAROLE DISQUALIFIER OF 85% PURSUANT TO THE NO EARLY RELEASE ACT FOR THE SENTENCE IMPOSED FOR THE SECOND-DEGREE CRIME OF POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE IN CONTRAVENTION OF THE APPELLATE DIVISION'S RULING.
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL AS COUNSEL FAILED TO ARGUE THAT A JUDGMENT OF ACQUITTAL WAS WARRANTED.
THE CUMULATIVE EFFECT OF THE GROUNDS FOR POST-CONVICTION RELIEF IDENTIFIED BY DEFENDANT WARRANT VACATION OF HIS CONVICTIONS AND SENTENCES, AND THE GRANT OF A NEW TRIAL.
To prevail on a claim of ineffective assistance of counsel, a defendant must not only overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984), but also must show that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense."
Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The New Jersey Supreme Court has expressly adopted this two-prong standard. State v. Fritz, 105 N.J. 42, 58 (1987). Having applied this standard to the record before us, we are satisfied that the trial court correctly denied defendant's petition.
Defendant's first claim that his attorney was ineffective is based upon counsel's failure to object to the trial court's preclusion of a proffered alibi defense. Rule 3:12-2 requires a defendant to provide, within ten days of the prosecutor's demand, a signed statement of alibi, specifying the place where he was at the time of the offense and the names and addresses of the witnesses who would establish that alibi. Subsection (b) of the rule provides that if a defendant does not comply, the trial court may refuse to permit testimony in support of the claimed alibi.
Defendant did not, in any manner, comply with this rule. In June 1998, shortly before the second trial commenced, his attorney sent a letter to the prosecutor, stating that defendant's aunt would testify that he had been with her during the time of the alleged offense. The trial court barred this defense.
We find no merit to defendant's contention that his attorney was ineffective for not objecting to this ruling. Defendant premises his argument in large measure upon State v. Bradshaw, 195 N.J. 493 (2008). We decline to consider defendant's attorney ineffective for not articulating the factors enunciated by the Supreme Court ten years after defendant was tried. We note, in addition, that Bradshaw is distinguishable for in that case, the Court was considering a trial court order which precluded the defendant himself from offering such testimony. There is no indication in this record that defendant, who had substantial prior criminal experience, intended to take the stand and testify.
We also reject defendant's contention that his attorney was ineffective for not requesting a Wade hearing, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967), prior to trial. Defendant points to nothing within the photo array that would warrant an inference of impermissible suggestibility. Rather, he argues, in effect, that his attorney was ineffective for not challenging the photo identification because the procedures utilized did not conform to the Attorney General's Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures, adopted years after defendant was tried and convicted.
In the prosecutor's opening statement to the jury, he outlined the underlying facts of the robbery which occurred on August 8, 1997. In the course of doing so, he stated that the police had been looking for defendant since the incident occurred. There was no objection to this statement. Defendant now contends his trial attorney was ineffective for not interposing an objection because the photo array, at which the victim selected his picture, was not conducted until August 16, 1997. Whether to object or to withhold an objection is often a matter of strategy selected by the attorney. Even apart from that, there is no reasonable likelihood that if an objection had been made, the outcome of defendant's trial would have been different. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
During the presentation of its case, the State called Detective Daniel Lash of the Atlantic City Police Department. Detective Lash was assigned to the Identification and Crime Scene Unit and, as part of his duties, responded to the scene of defendant's arrest. He took several photographs of the scene and recovered and tagged the BB gun that was recovered in connection with the arrest. Detective Lash offered no testimony about the underlying incident. Defense counsel did not cross-examine the detective, and defendant now contends that this omission constituted ineffective assistance of counsel because it did not put before the jury that the weapon was not tested for fingerprints. We concur in the analysis of the trial court, that the failure to cross-examine a witness who did not inculpate the defendant is not ineffective assistance.
Defendant's next two arguments are challenges to the NERA portions of his sentence. The Supreme Court, as we have noted, has already ruled that defendant was properly subject to NERA. Defendant cannot re-litigate that issue through the technique of a petition for PCR. And, contrary to defendant's arguments, it is immaterial that the BB gun may not have been equipped with air cylinders. State v. Jules, 345 N.J. Super. 185 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002) (holding that defendant properly received a NERA sentence when he used an operable but unloaded gun to commit a robbery).
Defendant also contends that the portion of his sentence that imposed an 85% period of parole ineligibility upon his ten-year sentence for possession of a weapon for an unlawful purpose is illegal because this court, on direct appeal, ruled that NERA does not apply to such possessory offenses. We note that defendant's sentence for possession of a weapon for an unlawful purpose is concurrent with his sentence for first-degree robbery, to which a NERA parole disqualifier was also attached. There is thus no overall increase in defendant's custodial exposure. If defendant believes he should be re-sentenced, he is free to file a motion with the trial court seeking that relief.
Defendant's remaining two points, that his attorney was ineffective for not moving before the trial court for a judgment of acquittal, and cumulative error, do not warrant discussion in a written opinion because it would have no precedential value.
The order under review is affirmed. R. 2:11-3(e)(2).
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