State v. Loyal

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0360.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2009

Before Judges Axelrad and Lihotz.

Defendant Furad Loyal appeals from a November 27, 2007 Law Division order denying his motion for post-conviction relief (PCR). On appeal*fn1 , he presents the following arguments for our consideration:

POINT I

DEFENDANT WAS NOT PROCEDURALLY BARRED FROM RAISING ADDITIONAL INEFFECTIVENESS OF COUNSEL CLAIMS IN HIS PCR PETITION THAT WERE NOT EXPRESSLY ADJUDICATED BY THE APPELLATE DIVISION ON DIRECT APPEAL.

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL/APPELLATE COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.

A. TRIAL AND/OR APPELLATE COUNSEL FAILED TO RAISE THE TRIAL COURT'S INADEQUATE ACCOMPLICE LIABILITY INSTRUCTION.

B. TRIAL COUNSEL FAILED TO ADVISE DEFENDANT OF THE POTENTIAL PITFALLS [OF] HIS TESTIFYING.

We affirm.

A jury convicted defendant of armed robbery, weapons offenses, and resisting arrest in connection with a robbery at gunpoint of four employees of National Electronic Transit as they delivered a copy machine to an elementary school. Defendant was sentenced to an aggregate term of eighteen years imprisonment, subject to the 85% parole disqualification period imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Loyal, Docket No. A-6160-01T4 (App. Div. Dec. 17, 2003). Certification was denied on December 6, 2005.

Defendant filed a pro se petition seeking PCR. Thereafter, counsel was appointed and filed a supplemental brief asserting additional requests arguing defendant's conviction should be overturned ...