On appeal from the Superior Court of New Jersey, Criminal Part, Essex County, Indictment No. 02-05-1962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 25, 2009
Before Judges C.L. Miniman and Simonelli.
Defendant Terrance Cooper appeals the denial of his first application for post-conviction relief. Because the PCR judge failed to conduct an evidentiary hearing and failed to consider all the issues presented, we reverse and remand for a hearing.
Defendant was charged in a six-count indictment with first-degree carjacking, contrary to N.J.S.A. 2C:15-2a(1), (2), (3); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b; second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; third-degree receiving a stolen automobile, contrary to N.J.S.A. 2C:20-7; and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a.
At 3:00 a.m. on November 14, 2001, Kim Lewter was returning home from a co-worker's birthday party in her Honda Accord. She stopped at a red light at the intersection of South Tenth Street and South Orange Avenue in Newark. She testified at trial that defendant opened the unlocked passenger door of her car and said, "Get out the car, bitch, before I kill you." Defendant jumped into the car, took out a gun, and struck her in the right temple with his hand. She opened her door and defendant tried to remove her hand from the steering wheel and take the car keys from the ignition. Defendant pushed her out of the car, got behind the wheel, and sped away.*fn1
The victim testified she ran five blocks to her house, woke up her husband, and called the police. When the police arrived, they drove her back to the scene, where she discovered her purse and cell phone. She described the carjacker and gave a formal report at the police station. She could not identify defendant from photographs in several "mug shot" books.
On November 19, 2001, a Hillside policeman heard a car alarm coming from a Honda Accord parked on the side of the road. Defendant was seated in the vehicle, and the officer stopped and asked defendant if he knew how to turn off the alarm. Defendant, pointing to a nearby house, said his friend had the key. When none of the six men in the house responded after defendant called for his friend, the officer told defendant to return to his car. The officer checked the license plate number and learned that the car had been stolen in an armed carjacking in Newark.
At that point, defendant exited the car and started to cross the street. The officer called for backup, drew his weapon, and shouted for defendant to stop. Both men tussled as the officer attempted to handcuff defendant, who was finally subdued when the backup unit arrived. The officer sustained minor injuries.
The next day, police assembled a photo array of defendant and five similar-looking individuals and the victim was asked if she could identify the carjacker. She selected the photograph of defendant and identified him in court during her trial testimony.
Defendant testified at trial that he knew the victim from seeing her purchase drugs on the street, including from him prior to November 14, 2001. At 2:30 a.m. that day, defendant was at an all-night restaurant on South Orange Avenue between Sixth and Seventh Streets when the victim pulled up to him in her car and asked for his friend "Malik," with whom defendant sold drugs on the street. Defendant told her "Malik" was not around and asked what she wanted. She responded she wanted some cocaine. Defendant said if she gave him a ride to 377 Tenth Street, he would sell her the drugs. She unlocked the passenger side door and drove him to this address. He went in and, when he returned with the drugs, the victim said she had no money. Defendant asked if he could borrow her car as payment for the drugs, promising to return it immediately and bring her more cocaine when he returned. She agreed, got out of the car, and defendant drove off. He did not return the car as promised, but used it to make another drug transaction with a friend and to transport drugs to Hillside.
After trial, defendant was found not guilty of first-degree carjacking and first-degree armed robbery but guilty of the lesser-included offense of second-degree robbery by threat or force. Defendant was also found not guilty on the two handgun charges but guilty of receiving the stolen automobile and resisting arrest. He was sentenced to an extended term of twenty years on the robbery conviction and to concurrent five-year terms on the other charges. On direct appeal, defendant raised the following issues:
POINT ONE -- DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS REQUIRED UNDER THE UNITED STATES CONSTITUTION AMEND 6, NEW JERSEY CONST. ART. 1 PAR. 10.
POINT TWO -- THE STATE'S FAILURE TO SUSTAIN ITS BURDEN OF PROOF REQUIRED AN ENTRY OF JUDGMENT OF ACQUITTAL IN DEFENDANT TERRANCE COOPER'S FAVOR; IN THE ALTERNATIVE, THE JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT THREE -- JURY'S INCONSISTENT VERDICT WHICH REJECTED CARJACKING COUNT AND GUN POSSESSION WHILE FINDING GUILT ON ROBBERY CANNOT STAND.
We noted the only argument made respecting ineffective assistance of counsel was a failure to request a Wade hearing, but identification was irrelevant because defendant testified the victim loaned her car to him. We rejected the second point because defendant failed to provide a transcript of his motion for a new trial. We rejected his third argument because the robbery charge related to both the car and the purse and, in any event, inconsistent verdicts are not a basis to set aside a verdict. Thus, we affirmed in all respects.
Defendant timely served his first application for PCR on November 16, 2006. In his pro se PCR petition and brief, ...