On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-10-4362 and 01-10-4363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Baxter and Alvarez.
Defendant Altarek Hamlet appeals the May 13, 2008 denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Tried with his co-defendant Arin L. Gibbs on Indictment 01-10-4362, defendant was convicted by a jury of first-degree carjacking, N.J.S.A. 2C:15-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree eluding, N.J.S.A. 2C:29-2b. Defendant entered a guilty plea to a related second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7b under Indictment 01-10-4363.
On January 3, 2003, defendant was sentenced to an extended term pursuant to N.J.S.A. 2C:44-3d to concurrent sixty-year terms of imprisonment,*fn1 subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robberies. Defendant was also sentenced to a concurrent twenty-five-year term subject to NERA on the carjacking, five years on the unlawful possession of a weapon, and ten years with a five-year term of parole ineligibility for eluding. Additionally, he received a ten-year sentence on the conviction for certain persons not to possess.
His sentence was affirmed on December 30, 2004. State v. Hamlet, No. A-4591-02 (App. Div. Dec. 30, 2004). His petition for certification was denied on May 25, 2005. State v. Hamlet, 183 N.J. 590 (2005). Defendant filed his petition for PCR on April 11, 2006, and oral argument was conducted on May 13, 2008.
The facts developed at trial can be briefly summarized. On July 25, 2001, Matthew Manning and Ricardo Frazier were sitting on Manning's front porch in Irvington, listening to music from Manning's car stereo. The car was parked in the driveway; the key was in the ignition. Defendant and Gibbs, who were seemingly just passing by, walked over to talk to Manning and Frazier about the car when defendant abruptly pulled out a gun. He went up the stairs towards Manning and Frazier, who unsuccessfully attempted to escape. While pointing the gun at them, defendant searched Frazier's pockets and ordered Manning to turn over his cash. Manning threw his money into nearby shrubbery, where it was retrieved by Gibbs.
Defendant and Gibbs jumped into Manning's car and drove off. Manning immediately spotted a police vehicle and waved down Officer Michael Campbell of the Irvington Police Department. Campbell radioed headquarters, activated his siren and lights, and pursued Hamlet and Gibbs for several blocks. After running a red light, defendant crashed into a tractor- trailer. Gibbs fled from the passenger's side of the vehicle; defendant tried to flee from the driver's side but Campbell apprehended him. A gun was retrieved from the scene. Manning and Frazier identified the two men from photo arrays. Neither defendant testified at trial.
Defendant was asked whether he wanted the jury to be given the Defendant's Election Not To Testify instruction,*fn2 and the following exchange took place:
Now, you have the right to have me read to the jury a certain charge that they cannot hold it against you - that you chose not to be a witness in this case. You have a constitutional right not to be a witness in this case, and they cannot hold it against you because you have chosen not to testify in the case, that you have the constitutional right to remain silent.
Do you want me to charge that to the jury? You [want] me to read that ...