January 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AARON OLIVARES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-04-0664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Lihotz and Ashrafi.
Defendant appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel in failing to present an adequate intoxication defense.
Defendant and a second man were charged with robbery of a teenager at 1:30 a.m. as he walked to his girlfriend's house in North Bergen. The victim testified that two men approached him and demanded his money. He identified defendant in court as the shorter of the two men, also identifying the shirt that defendant was wearing in court as the same one he was wearing at the time of the robbery. He testified that the taller man threatened him with a box cutter as defendant went through his pockets and then tried to get a ring off his finger. The victim smelled alcohol on defendant's breath. As defendant fled, he could not run straight and ran into a phone booth and knocked himself unconscious. The police apprehended both men immediately and returned the victim's money to him.
In March 2005, defendant was convicted by a jury of second- degree robbery, in violation of N.J.S.A. 2C:15-1, as a lesser- included offense of first-degree armed robbery. The jury could not reach a unanimous decision on armed robbery, and it also acquitted defendant of two weapons charges. On the second- degree charge of robbery, defendant was sentenced to seven years in prison, with ineligibility for parole until he had served eighty-five percent of the sentence under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On defendant's direct appeal, we affirmed his conviction and sentence. State v. Olivares, No. A-6172-04T4 (App. Div. Oct. 23, 2006). The Supreme Court denied his petition for certification. State v. Olivares, 190 N.J. 394 (2007).
Defendant then filed a PCR petition alleging ineffective assistance of counsel, in violation of his Sixth Amendment rights. The petition was considered and denied without an evidentiary hearing by the trial judge who had presided over defendant's trial. On appeal, defendant makes the following arguments:
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT.
B. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE TO PROVIDE PERTINENT AND READILY KNOWN WITNESSES TO SUPPORT DEFENDANT'S INTOXICATION DEFENSE
C. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE TO ENGAGE AN EXPERT WITNESS AND PROVIDE MEDICAL RECORDS TO SUPPORT HIS INTOXICATION DEFENSE
TRIAL COUNSEL'S PERFORMANCE WAS SORELY LACKING SINCE HE DID LITTLE TO ADVANCE THE DEFENDANT'S DEFENSE.
AN EVIDENTIARY HEARING IS WARRANTED.
Having reviewed the record, we conclude that defendant's arguments are without sufficient merit to warrant discussion in another written opinion. R. 2:11-3((e)(2). We affirm denial of defendant's PCR petition for the reasons stated in the thorough and well-reasoned written opinion of Judge Kevin G. Callahan issued on February 15, 2008.
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