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State v. Borek

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL BOREK, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-09-1151.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I

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).

POINT II

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).

POINT III

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).

POINT IV

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT V

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 convictions and his aggregate sentence.

However, because the weapons offense convictions merged with the armed robbery convictions, we remanded for the entry of a corrected judgment of conviction. In that opinion, we noted defendant had been convicted of robbing the same delicatessen twice on the same day, and we summarized the pertinent facts of the case as follows:

In the morning, a masked individual barged into a deli and demanded money while pointing a screwdriver at the clerk. After grabbing money, the robber fled. That evening, the robber returned. He was wearing the same clothes and mask and carrying the same screwdriver. Upon entry, the robber stated: "[o]ne more time." During the second robbery, the robber struggled with the clerk who was stabbed in the shoulder with the screwdriver. The robber's mask came off during the struggle, and the clerk was later able to identify defendant as the robber.

The police subsequently arrested defendant, and he was brought to the station, where he initially requested a lawyer. Sometime later, after defendant learned the seriousness of the charges pending against him, he requested to speak with the police. After receiving appropriate warnings, defendant admitted committing the robberies, but insisted that he had no desire to hurt anyone. He merely needed money to purchase drugs.

At trial, defendant testified and recanted his confession. He claimed that he was coerced into confessing and that he never committed the two robberies.

[Id. at 3-4.]

On or about March 30, 2004, defendant filed a PCR petition alleging, among other things, that he did not receive a fair trial because his attorney was ineffective. Following oral argument on June 15, 2007, the trial court denied defendant's petition. The court's findings and conclusions included the following:

First of all with respect to the adequacy of the [Miranda]*fn1 hearing, that is certainly an issue that could have been raised on appeal. But even beyond that, there was a [Miranda] hearing in this case, a rather detailed and vigorously argued effort on the part of the defense to keep the statement made by the defendant out of evidence in this case....

The... issue that something else might have been able to be presented relative to medical evidence does not to me [rise] to the level of indicating that counsel's performance was so deficient that effectively Mr. Borek did not have an attorney for purposes of a [Miranda] hearing. He did have an attorney who vigorously opposed the statement; and following a detailed hearing, that application was denied and the Court permitted the statement to come in. There's been no showing in my view here that counsel's performance was so deficient that a hearing is necessary on this issue.

As to the failure to request a particular jury charge, again it could have been raised on appeal. But going forward on it here, we really have a cross-ethnic identification rather than a cross-racial identification. But... even where we're dealing with cross-racial issues, [State v. Cromedy, 158 N.J. 112 (1999)] directs that there is not a need for a cross-racial identification charge in every instance. One needs to look at the totality of the circumstances. Here in addition to [the] identification the... State was relying upon and the Court admitted a statement as well as videotape evidence. So [Cromedy] in my view would not have applied in any event. And it's not ineffective counsel for failing to have requested a [Cromedy] charge.

As to the failure to request a [Wade] hearing. There was [an] out of court identification of the defendant made as a result of a one-on-one show up at the scene. Case law in this state is clear that one-onone show ups... could be subject [to]... a hearing. But the failure to request such a hearing in this case is not ineffective assistance. Again there was substantial evidence with respect to the defendant in connection with this matter, and generally the one-on-one show up was in accord with... existing case law.

Prosecutorial misconduct as I indicated was the subject of the appeal in connection with this matter and... the argument that counsel may have made about the prosecutor's closing arguments do not [rise] to the level of ineffective assistance.

Double jeopardy... must be viewed in consideration with I think the overriding principle... that partial verdicts... are discouraged; not that they should not be taken but that they are discouraged. The circumstances of the proposed partial verdict in connection with this case was discussed at length with counsel, and the Court made a determination that the partial verdict would not... be received....

[W]hile the argument here is that the defendant himself did not participate in the discussion about whether or not to take a partial verdict, it ultimately falls to the Court. And I disagree with counsel. I believe that there is discretion on the part of the Court with respect to that decision. And as I said... the Court made a discretionary call with respect to that matter.

On appeal from the denial of his petition, defendant presents the following arguments through counsel:

POINT I

THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIARY HEARING ON THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

(A) THE PCR COURT SHOULD HAVE HELD AN EVIDENTIARY HEARING WHERE DEFENDANT ARGUED THAT TRIAL COUNSEL SHOULD HAVE REQUESTED A WADE HEARING TO CONTEST THE ONEON-ONE OUT OF COURT IDENTIFICATION OF THE DEFENDANT ON THE BASIS OF SUGGESTIBILITY.

(B) THE COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO FAILURE TO VIGOROUSLY ATTACK THE DEFENDANT'S CONFESSION DURING THE MIRANDA HEARING.

POINT II

THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED DUE TO PROSECUTORIAL MISCONDUCT.

POINT III

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BOTH AT THE TRIAL LEVEL AND APPELLATE LEVEL, WHERE BOTH COUNSEL FAILED TO RAISE THE ISSUE OF DOUBLE JEOPARDY, AND DEFENDANT WAS CONVICTED IN A SECOND TRIAL WHERE THE FIRST TRIAL RESULTED IN A VERDICT ON THE SAME CHARGES.

POINT IV

THE PCR COURT FAILED TO ADEQUATELY ADDRESS AN ISSUE RAISED BY DEFENDANT ON PCR: THAT A SECOND DNA TEST SHOULD HAVE BEEN ORDERED TO DETERMINE THE SOURCE OF THE BLOOD ON DEFENDANT'S JEANS.

In addition, defendant presents the following arguments in his pro se supplemental brief:

POINT I

THE GRAND-JURY PROCEEDINGS RESULTING IN MY INDICTMENT WERE PLAINLY IRREGULAR AND ILLEGAL. (NOT RAISED BELOW).

POINT II

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO TIMELY CHALLENGE THE INDICTMENT. (NOT RAISED BELOW).

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR HIS PRE-TRIAL HANDLING OF THE MIRANDA AND WADE-IDENTIFICATION ISSUES CONTRARY TO MY WISHES. (NOT RAISED BELOW).

POINT IV

TRIAL COUNSEL WAS INEFFECTIVE FOR BEING UNPREPARED FOR TRIAL DUE TO HIS HAVING FOCUSED HIS EFFORTS PRIOR TO TRIAL ON PERSUADING ME TO PLEAD GUILTY AT THE EXPENSE OF PREPARING TO WIN A NOT-GUILTY VERDICT AT TRIAL. (NOT RAISED BELOW).

POINT V

TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ALLOWING ME TO ASSIST IN PREPARING MY OWN DEFENSE. (NOT RAISED BELOW).

POINT VI

TRIAL COUNSEL WAS INEFFECTIVE FOR PREJUDICING ME BY SAYING TO ME, IN OPEN COURT, IN FRONT OF THE PETIT JURY, "DON'T SAY ANOTHER WORD TO ME, NOT A FUCKING THING." (NOT RAISED BELOW).

POINT VII

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE LEGAL ARGUMENTS CONTAINED IN POINTS I-VI. (NOT RAISED BELOW).

POINT VIII

YVONNE SMITH SEGARS, PUBLIC DEFENDER, WAS INEFFECTIVE FOR NOT INTERCEDING TO CORRECT THE FAILURES OF HER DESIGNATED COUNSEL, FOR WITHHOLDING FROM ME DOCUMENTS THAT I WOULD NEED TO PROCEED PRO SE, AND FOR OTHERWISE BEING UNRESPONSIVE. (NOT RAISED BELOW).

POINT IX

THE OUTCOME OF THE TRIAL AND APPELLATE PROCEEDINGS WOULD HAVE BEEN DIFFERENT WERE IT NOT FOR THE CUMULATIVE EFFECT OF THE PREJUDICIAL ERRORS THAT OCCURRED, I.E., THOSE ERRORS RAISED IN POINTS I-VIII IN THIS BRIEF ALONG WITH THOSE ERRORS RAISED IN THE BRIEF BY RICHARD SPARACO. (NOT RAISED BELOW).

Based on our review of the entire record, the briefs, and the applicable law, we are convinced that all of defendant's arguments are clearly without merit. R. 2:11-3(e)(2). The PCR judge----who presided over both of defendant's trials----was thoroughly familiar with the facts of the case; there is sufficient credible evidence present in the record to support the judge's findings, State v. Locurto, 157 N.J. 463, 471 (1999); and the judge correctly applied well-settled legal principles. We therefore affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge John F. Malone in his oral decision on June 15, 2007.

Affirmed.


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