On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-09-1151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Stern, Graves and J.N. Harris.
Defendant Michael Borek appeals from an order entered on June 15, 2007, denying his petition for post-conviction relief (PCR). We affirm.
A Union County grand jury returned an indictment charging defendant with two counts of first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (counts one and three); two counts of third-degree possession of a weapon (a screwdriver) for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d) (counts two and four); and third-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(2) (count five). Defendant's first jury trial, which took place between July 31, 2001, and August 3, 2001, ended in a mistrial when the jury was unable to reach a verdict. Defendant's second trial commenced on August 7, 2001, and the jury found defendant guilty as charged on all counts.
On December 6, 2001, the court sentenced defendant to an extended fifty-year term as a persistent offender, with seventeen-and-one-half years of parole ineligibility for one of the armed robberies. The court imposed concurrent sentences for the other offenses.
On his direct appeal, defendant submitted a pro se brief in which he alleged that he did not receive a fair trial because he "was denied a Wade [United States v. Wade, 388 U.S. 281, 87 S. Ct. 1926, 18 L.Ed. 2d 1149 (1967)] hearing." Defendant also alleged that his attorney was ineffective because he elected to question the witnesses "totally cold." In addition, defendant's appellate counsel presented the following arguments on defendant's behalf:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S QUESTIONING OF TWO POLICE OFFICERS WHICH ELICITED THE DEFENDANT'S INITIAL REFUSAL TO SPEAK TO THE POLICE BY INVOKING HIS RIGHT TO COUNSEL, THEREBY INFRINGING UPON THE DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT AND HIS SIXTH AMENDMENT RIGHT TO COUNSEL (NOT RAISED BELOW).
THE JURY'S VERDICT FINDING THAT THE DEFENDANT HAD COMMITTED ARMED ROBBERIES IN COUNTS I AND III WHICH CONSTITUTED VIOLENT CRIMES PURSUANT TO THE NO EARLY RELEASE ACT WERE AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS II AND IV CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNTS I AND III CHARGING ARMED ROBBERY (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL ON THE BASIS OF PROSECUTORIAL MISCONDUCT REGARDING THE DEFENDANT'S JEANS.
In an unpublished opinion, State v. Borek, No. A-2955-01 (App. Div. Nov. 19, 2003), certif. denied, 179 N.J. 309 (2004), we affirmed defendant's ...