On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-04-0528.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Defendant was tried before a jury and found guilty of first degree armed robbery, N.J.S.A. 2C:15-1; third degree theft by unlawful taking of movable property, N.J.S.A. 2C:20-3(a); first degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(a); and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The court sentenced defendant to an aggregate twelve years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction dated June 5, 2009. We affirm.
At trial, the State presented evidence which established that on November 14, 2007, shortly after 8:00 p.m., two individuals approached Peter Policastro and his wife Shirley Policastro as they exited their vehicle at their residence in Cliffside Park. One of the individuals was armed with a handgun. He pointed the weapon at Mr. Policastro and told him to put his hands up.
The man with the gun told Mr. Policastro to give him his wallet. Mr. Policastro handed his wallet to him. The other assailant threw Mrs. Policastro down on the ground and demanded that she give him her rings. She refused. He then struck Mrs. Policastro with his fist on the right side of her head four or five times.
The second man again demanded that Mrs. Policastro give him her rings and said that he would kill her if she did not turn them over. He struck Mrs. Policastro again and tried to remove the rings forcibly. The first man pointed the gun at her. Mrs. Policastro finally took off her rings and handed them to the second man. The two men ran away.
The following day, Mr. Policastro identified defendant as the man who pointed the gun at him and his wife during the robbery. Thereafter, defendant was arrested. At the time, defendant was engaged in a romantic relationship with Mr. Policastro's ex-wife, Lina Policastro.
Defendant denied that he committed the robbery. He testified that, on the night of the robbery, he left work at his father's grocery store around 6:30 p.m. He stated that he went to a barbershop in Union City. He left the barbershop and took a 7:15 p.m. bus, then caught a 7:32 p.m. bus to Edgewater. Defendant said that he arrived at Lina's house "two minutes before 8:00[p.m.]" He testified that he remained there until the following morning.
At the time of the robbery, two of Lina's children, A.B. and J.B., were residing with her at her home. A.B. testified that defendant arrived at her home at approximately 8:00 p.m. and did not leave the house until the following day. Defendant's father testified that on November 14, 2007, defendant worked at his store until about 6:35 p.m. In addition, defendant's barber stated that defendant was at his shop in Union City until about 7:15 p.m.
In this appeal, defendant raises the following arguments for our consideration:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE IS ...