On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-06-1280.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Defendant Ibrahim Samha appeals from the August 19, 2008 decision denying his petition for post-conviction relief (PCR). We affirm.
After a jury trial, defendant was convicted of the following: first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count three); third-degree aggravated assault for causing significant bodily injury, N.J.S.A. 2C:12-1b(7) (count four); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count eight). He was acquitted on two counts of third-degree terroristic threats (counts nine and ten).
Defendant was sentenced on October 15, 2004, on count one to twenty-five years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A concurrent fifteen-year term, also subject to NERA, was imposed on count two. The convictions on the remaining counts were merged into count two.
Defendant appealed and, in an unpublished decision, we affirmed. State v. Samha, No. A-1978-04 (App. Div. Mar. 20, 2007). The matter was remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). Defendant's petition for certification was denied on June 1, 2007. State v. Samha, 192 N.J. 68 (2007). Defendant's PCR petition was filed pro se on July 23, 2007; assigned counsel thereafter filed a brief. The motion court denied the PCR application after oral argument on August 19, 2008.
As developed during the trial of the matter, the charges resulted from the thwarted robbery of a convenience store. During the incident, defendant pistol-whipped the elderly store owner. Defendant and a co-defendant carried the victim to a rear aisle in the store, duct-taped his mouth closed, and taped his feet and hands together behind his back. When a neighbor overheard the noises emanating from the store through an adjoining wall, she and her husband called police.
Alan Pollock, a regular customer who tried to enter the store and found it locked, looked in the window and saw two men inside. One man attempted to wave him away. The second man, whom Pollock described as "an older, heavier-set individual," with "short hair and [a] darker complexion," wearing blue latex gloves, was tearing phone cards off a pegboard on the wall behind a counter and throwing them into a bag or a box.
Police arrived as Pollock was trying to call the authorities from a nearby phone booth. When he returned, he saw the two men he had seen in the store, as well as the victim, being escorted out of the premises by police. During the trial, Pollock identified defendant as the man he had witnessed tearing phone cards off the wall. When police searched the premises, they found a gun, a roll of duct tape, and numerous smaller pieces of tape in one of the rear aisles. They also found a number of prepaid phone cards in a shopping bag; others were scattered on the floor behind the counter.
At trial, defendant testified that the victim had paid him a $1000 down-payment for the phone cards prior to the incident, promising to pay the balance later. Defendant's cousin testified as well, and he said that he had supplied defendant with some prepaid phone cards for him to sell. Defendant insisted that the victim had called him on March 23, 2003, and invited him to the store the following day so he could pay him the rest of the money due for the balance due on the purchase of the phone cards.
Defendant also testified that when he went to the store on March 24, 2003, he was under the influence of "marijuana, purple haze and... ecstasy," which he had consumed because he felt depressed and suicidal. Defendant claimed he did not recall much of the evening's events because of his state of intoxication, but remembered the victim unlocking the door, letting him in, and telling him he did not have the rest of the money. The next thing defendant said he remembered was the victim hitting him on the chin with his gun, after which the two men struggled for the weapon. Defendant also said he must have blacked out after the victim hit him with the pistol because he sometimes had blackouts when he was depressed. He also remembered being cuffed by police and driven to jail.
The State called Sherry Batelli, an EMT technician who treated defendant after his arrest, as a rebuttal witness. She was called to the Garfield Police Department to treat defendant for minor injuries to his face, including a half-inch laceration to the bottom of his chin and a small abrasion above his left eye. She stated that defendant was oriented as to time, person, and place, and that his eyes responded to light in a normal fashion. Batelli testified that his eyes were checked because unresponsive pupils are a "tell-tale sign" that a person is under the influence of drugs. Based on her interactions with defendant, she concluded that defendant did not need additional testing as to intoxication because the reactions of his pupils were normal. Furthermore, her notes indicated that defendant was oriented as to person, place, and time, and his speech was clear.
Defendant unsuccessfully attempted to introduce an expert report from Dr. Edward J. Dougherty, a psychologist, in order to buttress his defense of diminished capacity. That issue was extensively addressed on defendant's direct appeal because he contended that the court's failure to admit the report and the testimony, as well as the court's refusal to admit his mother's testimony with reference to his mental functioning, were prejudicial errors.
Shortly before defense counsel filed her brief in support of defendant's PCR motion, she produced an additional report from Dougherty. It was prepared post-verdict, after Dougherty reviewed some school and hospital records not previously provided to him. PCR counsel contended that the more recent report warranted a new trial because Dougherty now stated that the information provided in the records, when added to his initial opinion, supported "an opinion of diminished capacity, that is because ...