On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1655.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Carchman and Parrillo.
Defendant Pedro Bauza appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
Following trial by jury, defendant was convicted of first- degree armed robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(d). After merging the weapons offenses with the armed robbery, the judge sentenced defendant to a ten-year prison term with an eighty-five percent parole bar pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The facts comprising this criminal episode are taken from our previous decision affirming defendant's judgment of conviction, State v. Bauza, No. A-1073-05 (App. Div. April 3, 2007):
The prosecution was based upon a routine armed robbery of an attendant in a Citgo gas station, however, the State's investigation led it to believe that defendant had stolen another person's name, thereby adding some complexity to the potential proofs. The State concluded that defendant had somehow obtained a wallet belonging to Rudolfo Gonzalez, and then purchased and registered in Gonzalez's name the Lincoln Town car used in the robbery. Initially, however, the State intended to prove its case without calling Rudolfo Gonzalez and thus did not list him as a potential witness.
At trial, the State presented witnesses to prove that defendant, while driving a Lincoln Town car very early one morning in March, robbed a Citgo gas station attendant by placing a box cutter to the attendant's throat. The attendant later identified defendant in a photo lineup as the man who had robbed him and had also identified the Lincoln as the car used in the robbery. Although the attendant could not identify defendant in court as the person who robbed him, the police subsequently arrested defendant driving the Lincoln Town car, which was clearly visible in the gas station's surveillance videotape for the morning of the robbery.
As part of his defense, defendant attempted to show through cross-examination of the State witnesses and his own testimony that Rudolfo Gonzalez, not defendant, had committed the crime and that defendant had purchased the car not knowing that it had been used in the armed robbery. To counter this defense, the State proffered testimony from one of the officers regarding the theft of Gonzalez's wallet, but the trial court found the evidence to be inadmissible hearsay. Over defendant's objection, the court eventually allowed the testimony to establish the loss of Gonzalez's wallet and that he never owned a Lincoln Town car.
Defendant testified that at the time of the robbery he was at home with his "common law" wife. Defendant further testified that he had purchased the Lincoln Town car two days before he was arrested from a man called "Tariq" in Newark for $1200 in cash. Defendant stated that the car came with a driver's license, registration, and insurance card in the name of Rudolfo Gonzalez. Defendant's "wife" corroborated that he was at home with her while the robbery was being committed.
Defendant appealed from his judgment of conviction, arguing that the ...