On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Sabatino and J. N. Harris.
Defendant Ricardo Ozorio appeals the Law Division's denial of his petition for post-conviction relief ("PCR") arising out of his 2006 conviction for conspiracy to commit murder. We affirm the dismissal in all respects, except remand as to an unresolved issue concerning the jury instructions on accomplice liability.
We need not repeat the underlying factual scenario, which is detailed at length in our opinion affirming defendant's conviction on direct appeal. See State v. Ricardo Ozorio, No. A-5082-05T4 (App. Div. November 9, 2007), certif. denied, 194 N.J. 268 (2008). Briefly, the prosecution in this case arose out of a violent encounter between a group of young men, including defendant, and a rival group of other men near a gas station in West New York on August 24, 2003. During the course of that bloody street encounter, one of the members of the rival group, Garmair Brown, was fatally stabbed, and two of his associates were physically attacked. Several of the individuals in defendant's group came to the scene of the planned confrontation armed with sticks, screwdrivers, and knives. The State's theory at trial, which the jury evidently accepted, was that defendant and his co-conspirators attacked the victims in retaliation for the stabbing of one of their associates, Luis Carlos Arias, by a member of the rival group four months earlier.
After a lengthy jury trial, defendant was found guilty of conspiracy to commit Brown's murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3c. Other counts in the indictment against defendant were either dismissed or resulted in a not-guilty verdict. The trial court sentenced defendant to a twenty-year prison term, subject to an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2a.
On defendant's unsuccessful direct appeal, he argued that the trial court erred in admitting proof of the Arias stabbing; improperly failing to charge the jury as to the use of "other-crimes" evidence; inaccurately summarizing testimony in presenting the identification charge; improperly denying defendant's motion for acquittal on the murder conspiracy charge; and imposing an excessive sentence. We found all of those arguments lacked sufficient merit to set aside the conviction, and the Supreme Court thereafter denied certification.
Defendant then filed the instant PCR application in the Law Division. The application was considered by the same judge who had presided over defendant's jury trial. In an oral opinion, the judge found defendant's PCR claims substantively lacked merit and, as to certain arguments, also were procedurally untimely. The judge found no reason to grant defendant an evidentiary hearing on his petition.
Defendant now appeals the PCR denial. Through his attorney, he raises the following points:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
POINT II THE TRIAL COURT ERRED IN NOT CHARGING THE JURY APPROPRIATELY SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED
POINT III THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS
POINT IV THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT ...