October 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFREDO SUAREZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 THE COURT'S CHARGE TO THE JURY.
A. The Supplemental Accomplice Liability Charge Was Defective.
B. The Failure Of Counsel To Request That The Jurors Be told At The Time They Were Given An Accomplice Charge That All Jurors Must Unanimously Find Based On The Identical Theory Was Ineffective Assistance Of Counsel.
C. Defense Counsel Failed To Object To The Defective Simulated Weapons Charge To The Jury.
POINT III: THE CUMULATIVE ERRORS BY DEFENSE COUNSEL TAKEN TOGETHER WARRANT RELIEF.
POINT IV: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
Having reviewed the record, we conclude defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
We agree with the judge that defendant's PCR claims are barred by Rule 3:22-4, because they could have been raised on direct appeal. However, even if we consider the arguments, they are without merit. The trial court clearly instructed the jury on the two independent, alternate theories that (a) defendant simulated possession of a gun or (b) defendant was an accomplice to the co-defendant who had a club. The jury found defendant guilty on both theories, rendering moot any potential problems with the accomplice charge. Further, there was sufficient evidence to support the conviction for committing robbery while simulating possession of a deadly weapon, even if defendant did not display a "tangible object" which the victim believed to be a gun. See State v. Chapland, 187 N.J. 275, 277-78 (2006).
Defendant would have been convicted of first-degree robbery even if his counsel had objected to the accomplice charge. There is no basis for a finding that defendant's counsel was ineffective. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
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