On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0163.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2010
Before Judges Carchman and Waugh.
Defendant Larry Fogler appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.
We discern the following procedural and factual history from the record.
Fogler and two co-defendants were charged with the attempted robbery and shooting of Derrick McKenzie in Newark on September 23, 1999. Prior to trial, Fogler gave notice of an alibi defense, the gist of which was that he was at a family dinner at approximately the time of the shooting.
Sahir Thompson, one of Fogler's co-defendants, pled guilty prior to trial and agreed to testify against Fogler in exchange for a lighter sentence. Fogler and the other co-defendant, Charles McDougald, were tried before a jury in May 2002. Both McKenzie and Thompson identified Fogler as the shooter. Another witness identified Thompson as the shooter and testified that Thompson was accompanied by McDougald at the time.
At the end of the State's case, Fogler and McDougald moved for judgments of acquittal. The trial judge granted Fogler's motion as to the charge of first-degree robbery, but denied it as to the remaining charges. The judge granted McDougald's motion completely, concluding that he was in the area attempting to purchase drugs but that there was no evidence connecting him with the shooting.
The State conferred use immunity on McDougald for any incriminating testimony he might give about his efforts to purchase drugs. The prosecutor then notified the trial judge and Fogler's trial counsel that the State would call McDougald as a rebuttal witness if Fogler presented a defense.
Fogler and his trial counsel decided to withdraw the alibi defense and rested without calling any witnesses. The following colloquy took place at that time:
[DEFENSE COUNSEL]: Is the State saying they're giving use immunity to the defendant, McDougald, if he should testify?
[PROSECUTOR]: That's what I said.
[DEFENSE COUNSEL]: Judge, . . . I've indicated off the record, and I'll go on the record by indicating that at this juncture my client and I have agreed that it's our intention to rest our case now.
As the Court may be aware, the defendant had filed a notice of alibi in this case, which was provided to the Prosecutor, and accepted by the Prosecutor. My client and I have discussed the pros and cons of resting as opposed to proceeding with any defense. In light of the State's case, the nature and quality of it, in light of the fact that Mr. Fogler's co-defendant has now been acquitted by the Court, and the fact that . . . all of the potential positives and negatives that may flow from that, Mr. Fogler and I have agreed, and I'll ask him to acknowledge on the record . . . the fact that, in fact, we will be resting our case and not pursing an alibi defense.