On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 93-05-1012.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Yannotti.
Defendant Andre E. Boyer, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In April 1996, following a jury trial, defendant was convicted of two counts of first degree robbery, N.J.S.A. 2C:15-1; three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); second degree sexual assault, N.J.S.A. 2C:14-2c(1); two counts of kidnapping, N.J.S.A. 2C:13-1b(1); second degree conspiracy, N.J.S.A. 2C:5-2; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4); third degree terroristic threats, N.J.S.A. 2C:12-3a; second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7; and second degree witness tampering, N.J.S.A. 2C:28-5a. After appropriate mergers, the sentencing judge granted the State's motion for an extended term, finding defendant to be a persistent offender. The judge imposed two concurrent terms aggregating life with two consecutive ten-year parole disqualifiers pursuant to the Graves Act, N.J.S.A. 2C:43-6c to -6d. We affirmed on direct appeal, but remanded for re-sentencing. State v. Boyer, No. A-1507-96T4 (App. Div. January 26, 2000), certif. denied, 165 N.J. 561 (2000).
The evidence presented at trial was set forth in our decision on direct appeal. These are the salient proofs. On January 6, 1993, M.H., age nineteen, and her friend, A.D., age eighteen, were waiting for a bus in Camden when defendant pulled up in a yellow car and began talking to the women. Co-defendant William Fortune, defendant's nephew, was riding with defendant in the front passenger seat. After a brief conversation, defendant offered to give the women a ride to Woodbury. The women got into the car. Soon after, A.D. told defendant that he had driven past her exit. Then, the two men demanded money. The women gave them their pocketbooks and wallets. Defendant threatened to "put a cap" in the girls if they did not stop crying and talking.
At some point, defendant stopped the car along the shoulder of the Atlantic City Expressway. Defendant took M.H. to a wooded area and ordered her to pull down her pants. Then he raped her. A.D. pleaded with Fortune to let her go. He pointed a gun at her. She saw defendant on top of M.H.
Defendant walked M.H. back to the car and told Fortune that "it was his turn." Fortune told him, "[n]o, just get her out of the car, let's go." Defendant and Fortune left the women along the highway. They were subsequently picked up by a truck driver and taken to the State Police station.
At the police station, M.H. and A.D. described defendant's vehicle. They selected his photograph out of an array. The police arrested defendant and found clothing in his apartment matching the description given by the women.
Fortune was also arrested. He gave a statement to the police implicating defendant in the crimes. Fortune pled guilty to two counts of armed robbery and agreed to testify at defendant's trial. Fortune saw defendant two times before trial. Each time, defendant threatened him and his family. Fortune notified the prosecutor and the police. At trial, Fortune's testimony about the events on January 6, 1993, corroborated the testimonies of M.H. and A.D.
Defendant filed a first petition for PCR. Judge William J. Cook denied the petition without prejudice due to defendant's failure to "file and serve a verified [PCR] petition, as required by R. 3:22-8." Represented by counsel, defendant filed a second PCR petition. The brief raised the following arguments: (a) ineffective assistance of trial counsel for failure to raise the defense of diminished capacity and to challenge the grand jury proceedings; (b) defendant's sentence is excessive; (c) the trial court abused its discretion by imposing an extended term; (d) the trial court erred by recognizing inappropriate aggravating factors and failing to recognize an appropriate mitigating factor; (e) prosecutorial misconduct before the grand jury; (f) the trial court failed to provide a limiting instruction as to the fresh-complaint evidence (not raised below); (g) regarding defendant's convictions for tampering with a witness or informant, the trial court failed to charge the jury as to the lesser-included offense of retaliation against a witness or an informant; and (h) the trial court referred to "the victim" in its jury instructions regarding consent as a defense. Judge Cook denied the petition on procedural and substantive grounds. It is from that denial that defendant now appeals, contending:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5. THE LOWER COURT ORDER MUST BE REVERSED ...