On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-03-0349.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Payne and Waugh.
Following a jury trial, defendant Sean Wallace was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and other crimes. He was sentenced to a prison term of fifteen years subject to the eighty-percent period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed both defendant's conviction and his sentence in an unreported opinion, State v. Wallace, Docket No. A-6260-03T4 (App. Div. Jan. 19, 2006), and certification was denied. State v. Wallace, 187 N.J. 80 (2006). Thereafter, defendant filed a pro se motion for post-conviction relief (PCR), which upon appointment of counsel, was amended, argued and denied after an evidentiary hearing. This appeal followed.
On appeal, defendant raises the following arguments:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A) TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE THE CASE.
B) TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT IN A MEANINGFUL MANNER.
C) TRIAL COUNSEL FAILED TO PROPERLY ADVISE DEFENDANT DURING THE PLEA BARGAINING STAGE.
D) TRIAL COUNSEL'S STRATEGY WAS DEFICIENT AND AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
At the trial of this matter, evidence permitted the jury to conclude that during the evening of January 6, 2003, the victim, Miguel Valentine Tursty, traveled with his girlfriend to an apartment complex where he was met by Zakari Elhamri, defendant, and Orlando Richardson. While the four men were in the vicinity of the apartment, defendant and the others robbed Tursty at gunpoint, taking one-hundred dollars. Not satisfied and seeking additional cash, Elhamri, defendant and Richardson, brandishing guns, forced Tursty to travel with them to a Red Roof Inn in South Brunswick where Tursty and his girlfriend had taken a room. Once there, Tursty sought additional money from a friend named Jean Carlos Abreu who was staying in an adjoining room with his girlfriend. However, a scuffle occurred between Elhamri and Abreu, and eventually, in the early morning hours of January 7, defendant and his companions left the motel and drove off. Shortly thereafter, their vehicle was spotted by the police. However, by the time it was stopped, it was found to contain only Elhamri and Richardson. Defendant, who had been identified by the victim and others and who apparently had escaped from the car during the police's pursuit, was arrested on January 14, 2003 while in court on another charge.
Following his arrest, defendant gave a statement to lead detective Donald Varga in which he claimed that he was not present at the scene of the crimes and did not know any of the individuals involved. Nonetheless, at the trial of the matter, defendant was identified by Tursty and two of the women present at the motel, all of whom testified that he was known as "Bubalis." Tursty testified additionally that defendant had been a friend of his at the time of the robbery.
Defendant, who had no record when the trial took place, testified on his own behalf. During the course of his direct testimony, defendant stated that he lived at 30 New York Avenue in Brooklyn, but that he would, on occasion, visit his mother, Yvonne Meyers, who lived in New Brunswick, traveling back and forth by train, since he did not have a driver's license, had never had a driver's license, and never had a car registered to his name. Defendant testified that he was employed as a reggae artist, working "from studio to studio," and as a cook in Flatbush. Defendant denied that he had been in New Jersey on the night of the robbery, and he denied knowing the victim or any of the other people identified as present during the course of the robbery and its aftermath.
On cross-examination, defendant confirmed that he had never driven a motor vehicle except for one test drive in Brooklyn, and that he had never owned a car. Defendant again denied that he knew any of the witnesses that had testified against him at trial, and he denied that he was known by the name of Bubalis, stating that his name was Fabulous - a name he had used for the past nine years.
In response to a question by the prosecutor, defendant stated that, on the night of January 6, he had been in Brooklyn at the Don Juan recording studio. After a side-bar conference during which defense counsel stated that he had not asserted an alibi defense and that no alibi witnesses had been identified, the prosecutor cross-examined defendant with respect to differences between defendant's statement to the police and the testimony that he had just provided regarding his presence at the recording studio. The following exchange took place:
Q: So, you were at a recording studio in Brooklyn?
Q: And did not tell the police that?
A: It didn't - they didn't ask me where I was. And they asked me - I try to remember what he asked me. He asked me where was - where was like, what, January 7, something like - I don't quite remember, but like January 7, something like that, you know.
Q: So you didn't feel it was important at this time to tell the police you were somewhere else? You told [the police] you didn't know these people. You must have ...