On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-03-0993.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2009
Before Judges Rodríguez and Chambers.
Defendant Leopaul Meronville appeals from the order denying his petition for post-conviction relief (PCR). We affirm.
In 2002, following a jury trial, defendant was convicted of second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; first degree robbery, N.J.S.A. 2C:15-1; first degree murder, N.J.S.A. 2C:11-3a(1)(2); first degree felony murder, N.J.S.A. 2C:11-3a(3); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Judge Joseph V. Isabella, denied defendant's motion for a new trial, appropriately merged of offenses, and imposed concurrent terms aggregating thirty years with a NERA*fn1 parole disqualifier. We affirmed on direct appeal. No. A-4092-02T4 (App. Div. Oct. 20, 2004), certif. denied, 182 N.J. 430 (2005).
The proofs are fully set forth in our opinion on direct appeal. Briefly, on September 29, 2000, around closing time, two men committed a robbery at gunpoint at a bar in Newark. Defendant was one of the men. The two gunmen entered the club. One man possessed a shotgun and remained near the entrance. The second man showed a silver handgun.
Newark Police Officer John Jewell noticed a double-parked vehicle with the engine running while he was on his way to meet friends shortly after his shift had ended. He pulled over to ask the vehicle to move, when he came upon panicked patrons and subsequently encountered the gunmen. During trial, Jewell identified defendant in open court as being one of the gunmen he saw leave the club where the robbery/murder occurred.
Defense counsel asked Jewell why he was armed when he stumbled upon the gunmen, since his shift had ended and he was off duty when he saw the car. Jewell responded, "A police officer in the State of New Jersey is never technically off duty. We're required to carry our weapon anytime we're outside of the house in the entire State. If we're without our weapon in the State of New Jersey, we can be brought up on charges." Defense counsel asked no further questions about this particular response.
Defendant filed pro se a first petition for PCR. The court assigned counsel to represent defendant. PCR counsel filed a supplemental brief. Judge Isabella heard oral arguments and issued a written opinion denying defendant's request for an evidentiary hearing and the petition itself.
On appeal, defendant contends:
THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FAILING TO FIND THAT DEFENDANT HAD BEEN DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10. WHEN TRIAL COUNSEL FAILED TO OBJECT TO A JUROR WHO HAD ACCESS TO INFORMATION FROM OUTSIDE SOURCES AND FAILED TO REQUEST THAT THE COURT CONDUCT FURTHER INQUIRY INTO THE MATTER.
At the outset, we note that this issue is procedurally barred by Rule 3:22-4 (Bar of Grounds Not Raised in Prior Proceedings). This issue is not raised before us. Moreover, on direct appeal defendant alleged ineffective assistance of trial counsel for a different reason. Nonetheless, for the sake of a complete appellate review, we will discuss the merits.
The contention is based on the following incident. During trial, Juror Number 10's wife sat in the courtroom with the rest of the public. On day two of trial, Judge Isabella noticed the juror's wife and called her to sidebar while the jury was out of the courtroom on a break. The transcript reflects the following exchange:
THE COURT: Miss, please come up here, in the blue, please come up. (Sidebar discussion out ...