April 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES NOBLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-01-0101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Axelrad and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted in September 1995 on the following charges: (1) first-degree robbery, N.J.S.A. 2C:15-1; (2) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); (3) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); (4) second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; (5) first-degree robbery, N.J.S.A. 2C:15-1; (6) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); (7) first-degree robbery, N.J.S.A. 2C:15-1; (8) first-degree robbery, N.J.S.A. 2C:15-1; (9) first-degree robbery, N.J.S.A. 2C:15-1; (10) first degree carjacking, N.J.S.A. 2C:15-2; (11) first-degree robbery, N.J.S.A. 2C:15-1; (12) first-degree robbery, N.J.S.A. 2C:15-1; (13) third-degree receiving stolen property, N.J.S.A. 2C:20-7; (14) second-degree eluding police, N.J.S.A. 2C:29-2; (15) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); (16) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-3(a). Defendant was sentenced to a sixty-eight year aggregate term with twenty-six years parole ineligibility.
In his appeal from his convictions and sentence, defendant alleged the following errors: the admission of prior bad act evidence; improper comments in summation by the prosecutor regarding defendant's prior conviction; ineffective assistance of counsel in trial counsel's failure to timely object to prior crimes evidence and comments regarding defendant's prior conviction; the admission of fresh complaint testimony; cumulative error and manifestly excessive sentence. The arguments regarding the prosecutor's summation, the ineffective assistance of counsel, the fresh complaint testimony and cumulative errors were raised as plain error. In an unpublished opinion, State v. Noble, No. A-7474-95 (App. Div. Nov. 26, 1997), this court set forth the evidence presented at trial, which need not be repeated here, and affirmed defendant's convictions and sentence. Defendant's petition for certification was denied by the Supreme Court. State v. Noble, 153 N.J. 52 (1998).
Defendant filed a petition for post-conviction relief on October 30, 2000. In his pro se petition, defendant alleged that he was denied the effective assistance of counsel and that he was denied a fair trial. His counsel alleged that defendant's arrest was predicated upon invalid warrants and specified several grounds for ineffective assistance of counsel. The PCR was heard and denied on May 8, 2006. In this appeal, defendant raises the following issues:
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL, DIRECT APPEAL AND POST-CONVICTION RELIEF ATTORNEYS, CULMINATING IN HIS CONVICTION AND DENIAL OF HIS DIRECT APPEAL AND POST-CONVICTION RELIEF PETITION IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
A. BECAUSE THE APPELLATE ATTORNEY IN THE DIRECT APPEAL AND PCR COUNSEL BOTH FAILED TO RAISE THE ISSUE OF THE PROSECUTOR'S IMPROPER REMARKS DURING SUMMATION SUGGESTING THAT THE DEFENDANT TAILORED HIS TESTIMONY WITH RESPECT TO THE SEX CRIMES OFFENSES, THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).
B. BECAUSE THE POLICE METHODS USED TO GATHER THE IDENTIFICATION EVIDENCE WERE UNDULY SUGGESTIVE AND NOT SUFFICIENTLY RELIABLE THEREBY VIOLATING THE DEFENDANT'S DUE PROCESS RIGHTS UNDER THE FEDERAL AND NEW JERSEY CONSTITUTIONS, A WADE HEARING SHOULD HAVE BEEN CONDUCTED BEFORE TRIAL BUT WAS NOT AND THE FAILURE TO RAISE THIS ISSUE IN THE DIRECT APPEAL AND IN THE POST-CONVICTION RELIEF PROCEEDINGS WAS INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).
C. THE APPELLATE ATTORNEY IN THE DIRECT APPEAL PREMATURELY AND IMPROPERLY RAISED SOME OF THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUES WHILE NEGLECTING TO ADDRESS OTHER CONSTITUTIONALLY SIGNIFICANT POINTS. (NOT RAISED BELOW).
D. BECAUSE THE ARREST WARRANTS WERE INVALID, THE DEFENDANT'S CONVICTIONS MUST BE SET ASIDE.
THIS CASE SHOULD BE REMANDED BACK TO THE PCR COURT AND NEW COUNSEL ASSIGNED TO REPRESENT THE DEFENDANT SO THAT THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUES CAN BE PROPERLY BRIEFED AND EXPLORED AS PART OF A COMPREHENSIVE EVIDENTIARY HEARING.
THE SENTENCE IMPOSED WAS ILLEGAL AND MUST BE VACATED.
REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.
We find these arguments to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Although defendant made the argument that he was denied the effective assistance of counsel in his PCR petition, the grounds alleged for that claim differed substantially from those now asserted on appeal. Specifically, defendant now argues that his trial counsel was ineffective in failing to object to the prosecutor's comments in summation that he had tailored his testimony*fn1 and failing to request a Wade*fn2 hearing. He also argues for the first time on appeal that his appellate counsel was ineffective in prematurely raising some ineffective assistance claims and failing to address other constitutionally significant points. This court does not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, we are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel required by the standard formulated in Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987) to warrant an evidentiary hearing on his claims. See R. 3:22-10(a); State v. Goodwin, 173 N.J. 583, 596 (2002); State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant also argues that his conviction must be reversed because the warrants issued for his arrest were signed by a police lieutenant and not a judicial officer. This argument is both procedurally barred and lacking in merit. "[O]bjections based on defects in the institution of the prosecution" must be raised before trial and the failure to do so constitutes a waiver of the defense. R. 3:10-2(c). Moreover, this issue was fully capable of being raised on direct appeal and is therefore also procedurally barred pursuant to Rule 3:22-4. In any event, the argument lacks merit as the police lieutenant was authorized to sign complaints. R. 3:2-1; N.J.S.A. 2B:12-21(b).
Defendant challenges his sentence as excessive because he "was sentenced near the maximum end of the sentencing range," a contention that does not equate with the allegation of illegality contained within the point heading of his argument. The issue whether defendant's sentence was excessive was decided on direct appeal, and the Appellate Division found defendant's sentencing reasonable and consistent with controlling case law. Therefore, the PCR court properly declined to reconsider the issue of defendant's sentence, as well as his argument regarding cumulative errors. R. 3:22-5.