On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 96-09-2999.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 1, 2009
Before Judges Stern and Graves.
Defendant was convicted of conspiracy to commit murder, attempted murder, aggravated assault,*fn1 possession of a firearm for unlawful purpose, and unlawful possession of a firearm. After merger, he was sentenced to fifty-five years with twenty years of parole ineligibility on the attempted murder conviction and a concurrent sentence on the unlawful possession violation.
The evidence at trial revealed that Bryant Jackson's car was shot at on the Garden State Parkway. A passenger in Jackson's car, Deirdre Mullen, recognized "Ditto" as the shooter. "Ditto" is a nickname used by defendant.
Mullen did not testify at the trial. Other passengers, victims Jackson and Checora Washington, did testify, but repudiated their similar prior identifications of defendant.*fn2
However, their identifications were admitted as prior inconsistent statements after a Gross hearing. See State v. Gross, 121 N.J. 1 (1990). Moreover, Jackson also identified defendant while in the Newark jail, and defendant was well known to Washington. "Ditto" was her nephew.
On the direct appeal, we found the identification evidence admissible and the evidence sufficient to sustain the conviction.
In his PCR petition, defendant claimed defense counsel did not investigate the alibi defense, presented no notice of alibi, and called no alibi witness. He also claimed that counsel did not investigate the claim that Jackson was shot by "Shariff." He further claimed that counsel failed to impeach Jackson with respect to the fact that "Shariff" was the shooter.
At the PCR hearing, defendant testified that he told trial counsel "Bryant Jackson and Shariff had an argument in the parking lot, and where Shariff told Bryant Jackson that he shot him."*fn3 He also testified that he told counsel about the alibi. Al-Tariq Little, a potential alibi witness, testified that defendant and he were "drinking and smoking" at the time Jackson was shot. Jackson also testified that he and Shariff had an argument for "a week or two" over "drugs, turf, money." After the argument, Jackson stated that his car was "vandalized" and he was followed from a nightclub before the shooting. Jackson further testified that "[p]robably about a week prior to" being shot, Shariff had threatened to shoot him, and Shariff subsequently told Jackson that he was the person who had shot him.
Judge Ravin concluded that the petition was not time barred filing, see R. 3:22-12, and granted an evidentiary hearing. Thereafter, he ultimately wrote a formal opinion denying the petition. He found that only defendant testified he told counsel of the alibi defense and found it was, in any event, uncorroborated by credible evidence. The judge also found defense counsel endeavored to investigate and "made a good faith attempt to contact" Jackson. Judge Ravin also found that defendant and Little were not credible.
As noted, Jackson had testified that he had a "turf war" with "Shariff," who shot him. However, Judge Ravin also found that Jackson was incredible. On the other hand, the judge found defense counsel "credible" in testifying that he tried to have an investigator contact "Jackson as there was a possibility of his recantation." Based on these credibility findings, we must affirm the denial of PCR. See, e.g., State v. Locurto, 157 N.J. 463 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
Defendant claims that if he were told he was eligible for an extended term, he would have accepted a plea bargain. However, the claim was not raised or developed at the PCR hearing. It appears from defendant's PCR testimony, however, that defendant told counsel he was not interested in a plea agreement because he "didn't do it." ...