On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-09-1614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Rodríguez and Reisner.
Defendant Alfredo Suarez appeals from an order of June 4, 2007, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and was sentenced to ten years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was accused of stealing the victim's cell phone by simulating possession of a gun, reaching under his shirt toward the waistband of his pants, and threatening to "cap" (shoot) the victim. There was evidence as well that a co-defendant was armed with a club-type weapon.
At his trial, defendant admitted to the theft but claimed there was no gun or threat to use one. However, according to the verdict sheet, the jury convicted him of robbery by threatening "the immediate use of a deadly weapon and engag[ing] in conduct or gestures which simulated possession of a deadly weapon and which would lead a reasonable person to believe the defendant possessed such a weapon." The jury also found defendant guilty of accomplice liability. We affirmed the conviction and the sentence on direct appeal. State v. Suarez, No. A-1805-04 (App. Div. Aug. 24, 2005), certif. denied, 185 N.J. 392 (2005).
In his PCR petition, defendant raised several claims of ineffective assistance of counsel, which the judge denied after holding an evidentiary hearing. However, defendant also raised an issue concerning a jury charge of accomplice liability. The PCR judge summarily rejected that claim in an oral opinion issued on May 3, 2007, ruling that the issue was moot because the jury convicted defendant as a principal. The judge also reasoned that a challenge to the jury charge was barred because it should have been raised on direct appeal. R. 3:22-4.
On this appeal, defendant once again focuses on the accomplice liability charge, raising the following points for our consideration:
POINT I: THE FAILURE OF DEFENSE COUNSEL TO MOVE TO ADDRESS THE ACCOMPLICE ISSUES TO THE JURY WAS INEFFECTIVE ASSISTANCE OF COUNSEL WHETHER OR NOT THE ACCOMPLICE CHARGE WAS LEGALLY DEFECTIVE AS SET FORTH IN POINT II.
A. Trial Counsel Failed To Provide Effective Assistance At The Critical Juncture Of The Proceedings.
POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO OBJECT TO ERRORS IN ...