On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-05-0688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Baxter and Fall.
Defendant Ramon Leon appeals from a January 29, 2007 order that denied his first petition for post-conviction relief (PCR). We affirm.
Following a trial by jury, defendant was convicted of third-degree burglary of an automobile under Indictment No. 02-05-0688. He thereafter pled guilty to an unrelated indictment, No. 03-01-0064, which also charged third-degree burglary. The judge sentenced him on each indictment to a concurrent five-year term of imprisonment. We affirmed both convictions on direct appeal.*fn1
Defendant filed a timely PCR petition in which he asserted that he was denied a fair trial on Indictment No. 02-05-0688 because the court permitted a mid-morning break during cross-examination of a witness for the State without instructing the prosecutor not to speak with the witness during the break. Defendant also argued that trial counsel was ineffective because he: 1) caused the judge to instruct the jury on the lesser- included offense of criminal trespass--which would not otherwise have been presented to the jury--by arguing in summation that if defendant was guilty of any offense, he was guilty merely of criminal trespass, not burglary; 2) prejudiced the jury against defendant by arguing in summation that defendant had fled the scene; 3) failed to object to an improper summation by the prosecutor; 4) failed to request that certain evidence be dusted for fingerprints; and 5) failed to object to an illegal plea offer. Finally, defendant argued that appellate counsel was ineffective for failing to raise ineffective assistance of trial counsel on direct appeal. In a lengthy oral opinion, Judge Barisonek concluded that an evidentiary hearing was not required and rejected each of the arguments defendant advanced. On appeal, defendant raises the following claims:
I. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
B. Defendant Was Denied Effective Assistance of Counsel by the Trial Attorney When He Asked the Trial Judge to Charge the Lesser[-]Included Offense of Trespass When the Defendant Denied That He Entered the Victim's Car.
C. Trial Counsel Made a Strategic Decision Without His Client's Consent, to Request a Charge on a Lesser-Included Offense, Altering the Evidentiary Picture, and the Inferences the Jury Was to Draw Them From.
D. Trial Counsel Conceded on Summation That Petitioner Fled the Crime Scene in Order to Avoid Accusation, Abandoning Significant Defense of Impeachment Evidence.
E. Defense Counsel Opened the Door for Prosecutorial Misconduct and Failed to Register Objections to Improper Remarks on the Prosecutor's Summation.
F. Counsel Failed to Request Key Pieces of Evidence to be Dusted for Fingerprints in Order to Link them to Petitioner.
G(1). Counsel Was Constitutionally Ineffective During Plea Negotiations by Erroneously Informing His Client that the Recent Jury Trial Conviction Would Result in the Imposition of an Extended Term had Petitioner Decided to Stand Trial on Ind. No. 03-01-00064-I, and by Not Raising the Argument that the ...