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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 In an unpublished opinion, State v. Noble, No. A-7474-95 (App.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 ...