April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE ALLEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-10-3409.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Waugh and Newman.
Defendant Lawrence Allen appeals from an order denying his post-conviction relief (PCR) petition. Tried to a jury, defendant was found guilty of first degree robbery, third degree aggravated assault, possession of a weapon and possession of a weapon for an unlawful purpose. On July 8, 1994, the trial judge granted the State's motion for an extended term and sentenced defendant to forty years imprisonment with twenty years of parole ineligibility on the robbery conviction, consecutive to the sentence defendant was then serving. The judge sentenced defendant to concurrent sentences of five years each on the assault and possession of a weapon charges, merging the weapons possession charge into the possession of a weapon for an unlawful purpose charge.
Defendant's direct appeal was affirmed by this court on June 27, 1996, and his petition for certification was denied by the Supreme Court on September 28, 1999. State v. Allen, 162 N.J. 132 (1999). Defendant filed a motion for an illegal sentence on November 17, 2004, but no action was apparently taken. Defendant filed a pro se PCR petition on March 6, 2007. That motion was denied by the trial judge on November 30, 2007, although the judgment of conviction was amended to merge the possession of a weapon for an unlawful purpose into the first degree robbery conviction.
The salient facts involving the robbery were summarized by this court as follows:
On August 13, 1993, Lisa Ferguson was walking with her sister over the 16th Avenue Bridge in Irvington when the defendant suddenly approached and snatched Ms. Ferguson's purse. She struggled with the defendant but fell to the ground when the shoulder straps on the purse broke.
Defendant then fled the scene with the purse and Ms. Ferguson in chase. As the pursuit unfolded, several bystanders took up Ms. Ferguson's cause and began to pursue the defendant. Ms. Ferguson's husband arrived on the scene and followed the defendant into a building where defendant threw a piece of plate-glass window towards Mr. Ferguson in order to prevent his advance. Police then entered the building and arrested defendant as he attempted to hide in the basement.
Ms. Ferguson's husband, Frank Nelson, sustained bodily injury, requiring eighteen stitches to his forearm and a resulting scar. While the jury was satisfied that only bodily injury was sustained in finding defendant guilty of third degree assault as a lesser included offense, it was also persuaded that during the course of the robbery defendant attempted to inflict serious bodily injury on Frank Nelson.
In denying defendant's petition for PCR, Judge Fullilove, who was the trial judge, found that defendant's petition was precluded by the five year time bar of Rule 3:22-12(a), and that he was not entitled to a re-sentencing under State v. Natale, 184 N.J. 458 (2005) and State v. Pierce, 188 N.J. 155 (2006) because defendant's case did not fall within the pipeline retroactivity recognized by Natale and implicitly by Pierce. Lastly, Judge Fullilove found that defendant's first degree robbery conviction comported with the evidence.
On appeal, defendant raises the following arguments:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND GRANT THE REQUESTED RELIEF.
1. DEFENDANT'S PETITION IS NOT TIME BARRED.
2. DEFENDANT'S FIRST-DEGREE ROBBERY CONVICTION STANDS ON INSUFFICIENT EVIDENCE AND IS IMPROPER.
3. THE MATTER SHOULD BE REMANDED FOR RE- SENTENCING UNDER STATE V. PIERCE.
We reject defendant's arguments and affirm substantially for the reasons expressed by Judge Fullilove in his oral decision of November 30, 2007. We add only the following comments.
The filing of the PCR petition on March 6, 2007, was more than twelve and one-half years beyond the sentencing date of July 8, 1994. No showing of excusable neglect was shown, much less even attempted. Judge Fullilove properly denied the petition on this ground.
Moreover, the primary argument that the first degree robbery conviction was based on insufficient evidence should have been raised on direct appeal and could have been barred on that basis alone. R. 3:22-3; R. 3:22-4. The PCR procedure is not a substitute for direct appeal and ordinarily not raising the issue on direct appeal bars consideration by way of a PCR application. State v. McQuaid, 147 N.J. 464, 483 (1997).
Even had the argument been properly raised, it would have been rejected. A person is guilty of robbery "if, in the course of committing a theft, he . . . inflicts bodily injury or uses force upon another." N.J.S.A. 2C:15-1a. An act is "in the course of committing a theft" if it occurs in the attempt to commit theft, or in the immediate flight after the attempt or commission. Ibid. Robbery is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury or is armed with, or uses or threatens the immediate use of a deadly weapon. N.J.S.A. 2C:15-1b. Here, defendant was pursued after snatching the handbag from Ms. Ferguson. During that pursuit he threw a glass plate at Nelson who was among the pursuers. The victim of the theft does not have to be the object of the force. State v. Mirault, 92 N.J. 492, 497 n.4 (1983). Defendant's assault on Nelson was an integral part of the robbery and occurred during immediate flight following the purse snatching. The evidence clearly supported the jury's determination, finding defendant guilty of first degree robbery.
Defendant's extended term sentence was affirmed by this court on direct appeal, concluding that Judge Fullilove "properly applied the principles set out in State v. Dunbar, 108 N.J. 80 (1987) which held that the court may, on application by the prosecutor, sentence an offender to an extended term if it finds that defendant is a persistent offender." State v. Allen, No. A-0448-94T4 (App. Div. June 27, 1996) (slip op. at 7.) Defendant's sentence took place well before the decisions in Natale and Pierce so that pipeline retroactivity was unavailable for any further consideration of defendant's sentence.
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