On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-02-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
Defendant Gregory Hines appeals the denial of his post-conviction relief (PCR) application without evidentiary hearing. For the reasons that follow, we affirm.
Tried to a jury, defendant was convicted on July 28, 1999 of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two). Count two was merged with count one. Defendant was sentenced on January 7, 2000, to an extended term of sixty years imprisonment subject to a twenty-three-year parole disqualifier pursuant to N.J.S.A. 2C:43-7.1b(2) under the "Three Strikes and You're In" Law. The sentence was affirmed on November 20, 2001. State v. Hines, No. A-3896-99 (App. Div. Nov. 20, 2001). Certification was denied by the Supreme Court on May 22, 2002. State v. Hines, 172 N.J. 356 (2002).
Sometime in July 2002, defendant filed a petition for post-conviction relief. Counsel thereafter filed a supplemental brief and certification in support of the petition. On March 19, 2007, the petition was heard and denied, and this appeal followed.
We now review the facts necessary to the determination of defendant's arguments on appeal. On November 9, 1996, at approximately 3:50 a.m., a newspaper delivery person was robbed at knifepoint in the vestibule of an apartment building in Elizabeth. Later that day, defendant was arrested on unrelated charges. Because of similarities in the clothing worn by defendant at the time of the arrest and the description given by the victim of her assailant, as well as his possession of a folding pocketknife similar to that used during the robbery, defendant was placed in a physical line-up at the Union County jail on November 15, 1996. He was identified by the victim, who testified at defendant's trial as to this out-of-court identification; she also made an in-court identification of defendant.
Defendant's mother, Ernestine Hines (Hines), testified at trial as defendant's alibi witness. On cross-examination, she acknowledged having testified as an alibi witness in at least two previous trials. The judge allowed the testimony because of relevance to Hines's credibility, but the jury was given a limiting instruction informing them that they could only use the information to assess Hines's credibility. They were told that they were "not to assume that the prior proceedings of which Ms. Hines is testifying involve [defendant]." In closing, the prosecutor described Hines as a "very practiced witness" who was well-coached.
Identification was a crucial issue in the case; the attack on the credibility of defendant's alibi witness was, as we previously said on the direct appeal, "critical to the State's position."
On direct, Hines claimed that upon learning of the charges against her son in November 1996, she immediately called his trial attorney and told her that she had been in Atlantic City with her son and a mutual friend when the robbery was alleged to have occurred. Hines was subsequently cross-examined about testimony she previously gave to the effect that she had not contacted anyone about the alibi until October 1997, almost a year later. At the earlier proceeding, Hines also testified that a defense investigator came to her house on October 15, 1997, to interview her about the alibi. In order to ameliorate the confusion without creating prejudice to defendant, trial counsel stipulated that defense counsel commenced representing defendant on November 21, 1996. This reconciled Hines's prior testimony with her trial testimony, as Hines could have spoken with defense counsel in November 1996 but not met with an investigator until October 1997.
On appeal, defendant raises the following points:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE ...