On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-04-0711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) following a hearing. We affirm.
A jury convicted defendant of armed robbery, N.J.S.A. 2C:15-1, in 2002. He was sentenced to a term of twenty years with ten years of minimum parole ineligibility, which was to run consecutive to a sentence defendant was serving for a separate offense, as well as appropriate fines and penalties. Defendant appealed his conviction, raising the following issues as error:
(1) the admission of prior statements of victims into evidence; (2) preliminary instructions given to the jury; and (3) denial of his motion for a new trial. This court affirmed his conviction and sentence in an unpublished opinion, State v. Johnson, No. A-6495-01 (App. Div. Oct. 29, 2003); his petition for certification was denied by the Supreme Court on February 13, 2004. State v. Johnson, 179 N.J. 311 (2004).
Defendant filed a petition for post-conviction relief on January 26, 2007. The PCR judge presided over defendant's trial on this charge. The PCR judge found that two of defendant's claims were procedurally barred pursuant to Rule 3:22-4 because they could have been raised on direct appeal: (1) the alleged ineffective assistance of counsel based upon inadequate cross-examination and (2) the denial of a fair trial based upon the trial court's refusal to adjourn the trial to permit a substitution of counsel. As a result, these claims were denied without a hearing. The PCR judge also found that defendant failed to make a sufficient showing to warrant an evidentiary hearing on the following allegations of ineffective assistance of counsel: (1) failure to investigate; (2) failure to adequately prepare the defense with defendant; and (3) counsel's alleged ineffectiveness in pressuring defendant not to testify at trial. The PCR judge held an evidentiary hearing on the remaining issue, the alleged ineffectiveness of counsel in failing to pursue an alibi defense.
Pertinent evidence from the trial can be summarized as follows:
The robbery for which defendant was convicted occurred at approximately 11:15 p.m. on December 31, 1998, in Asbury Park. The robbery victims, Justin Holly and Carl Wallace, were sitting in a parked car outside their night club to alert potential club-goers that the opening they had planned for that evening was canceled. Two masked men opened the car doors, pointed guns at them and demanded their belongings. Holly recognized one of the robbers as Jamal Fischer. Wallace recognized the voice of the other robber as defendant. After the robbers took Holley's jewelry and money, they ran to a waiting maroon Nissan 240SX that was later determined to be registered to defendant's girlfriend, Tynisha Moore.*fn1 Wallace identified a third man, who drove the getaway car, as Kyle Johnson. The victims chased them for a couple of blocks until they saw a police officer.
Johari Reevey testified at trial that she loaned her car to Jamal Fischer between 8:00 and 9:00 p.m. that evening. Approximately one hour later, defendant arrived with Moore at her home in Neptune in Fischer's black Mercedes Benz. He and Moore stayed at her home for approximately twenty minutes. Defendant returned at some point between 1:00 and 4:00 a.m., without Moore, but driving her maroon Nissan 240SX. On January 1, 1999, Fischer and Kyle Johnson were located in Reevey's car. A search of the car produced a skull cap containing Holley's stolen jewelry.
The evidence presented at the PCR hearing can be summarized as follows:
Moore testified that she was at work at First Union Bank in Carlstadt that evening. Defendant picked her up between 8:30 and 9:00 p.m. and dropped her off at her apartment, also in Carlstadt, between 9:15 and 9:45 p.m. She stated that defendant then went to a fast food restaurant in Hillside and brought food back to her. She estimated that he was gone about thirty-five to forty minutes and returned between 9:45 and 10:30 p.m. He remained with her for a while and then said that he was going to his brother's apartment approximately two blocks away in Hillside. She stated that defendant called her later but was imprecise about when and for how long. Initially, she said that he called "eleven-ish" and was on the phone with her for approximately one hour to one and one-half hours. Later, she said that they were on the telephone until 1:00 a.m. She testified that she spoke to defendant's attorney "numerous times" and told him she wanted to testify but that he said that it was not a good idea.
Defendant's brother, Richard Jones, testified that he arrived home that evening between 7:30 and 7:45 p.m. Defendant was living with him at the time. Although unsure of the exact time, Jones stated that defendant arrived between 7:30 and 8:00 p.m. Jones stated that defendant watched television and spoke on the telephone with his girlfriend for the rest of the night. This testimony conflicted with Moore's version of events. Jones ...