On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0424.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Defendant Sadiq Arnold appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, for which he was sentenced to a ten-year term subject to an eighty-five percent parole ineligibility bar pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We recount the facts of the criminal event as stated in our previous opinion affirming defendant's conviction:
At 6 p.m., on August 24, 2005, Elizabeth Ogunbanjo waited for a bus at the intersection of Chestnut and Broad Streets in Newark. Defendant approached Ogunbanjo seeking directions. She ignored him. Defendant then grabbed Ogunbanjo's neck "trying to take off [her] chain." The chain broke and fell into her shirt. Following a struggle between the two, defendant grabbed Ogunbanjo's earring and fled. A patrolman was alerted and defendant was apprehended. Ogunbanjo suffered scratches to her neck and chest. Her cousin rendered first aid; her injuries did not require further medical attention.
[State v. Arnold, No. A-1921-06T4 (App. Div. January 24, 2008) (slip op. at 2).]
After defendant ran off, Ogunbanjo alerted Officer Danny Johnson of the Newark Police Department, who was stopped at a red light on Chestnut Avenue. Once Ogunbanjo pointed out defendant running away, Officer Johnson followed him in his marked vehicle for about two blocks before catching up with him at Crawford and Washington Streets. Defendant then voluntarily returned with Officer Johnson to the intersection of Chestnut and Washington Streets, where Officer Johnson found Ogunbanjo at her aunt's store tending to the scratches that she sustained as a result of defendant grabbing her neck. Ogunbanjo told Officer Johnson what had taken place and later identified defendant. Officer Johnson searched defendant and found the earring inside his pocket.
On appeal, defendant argued that he was deprived of his state and federal constitutional rights when the trial court failed to charge theft from the person as a lesser-included offense of robbery, and instead charged theft of movable property. Also, defendant asserted on appeal that trial counsel should have argued against the imposition of a NERA sentence.
We rejected both arguments, finding as to the former that the jury had sufficient evidence to support the conclusion that defendant used force against the victim and that the jury was not precluded from finding defendant guilty of third-degree theft. Id. at 12. Furthermore, we held that the judge's findings with respect to sentencing were supported by the applicable sentencing guidelines. Id. at 13.
Subsequently, defendant filed a timely PCR petition, wherein he argued, among other things, that trial counsel failed to object to the theft of property charge and to the imposition of a NERA sentence. In his November 18, 2008 decision denying relief, the PCR judge concluded that defendant's petition was procedurally barred because it "asserts claims and raises issues which are 'identical or substantially equivalent' to those asserted in [defendant's] [direct] appeal. The Appellate Division dealt with the claims and affirmed the trial court's decision." Nevertheless, the PCR judge went on to reject defendant's arguments on the merits:
The [defendant's] first point that trial counsel failed to argue that theft from a person should have been charged as a lesser-included offense of robbery is without merit. The Appellate Division provided careful consideration of this issue and concluded that the jury based their decision on the facts presented during the trial that force was used by [defendant]. Further the Appellate Division noted that "[a]s to the charge itself, the trial judge recited a charge for theft of movable property, an appropriate lesser included offense to robbery." The Appellate Division further distinguished the Court's charge from the "cases where the trial judge neglects to provide a charge on a lesser included offense." Therefore, the jury had the opportunity to reject the State's proofs and find that ...