On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2328.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2010 - Decided
Before Judges Fuentes and Ashrafi.
Defendant Altereke Nash appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
In June 2003, defendant was indicted by a grand jury on nineteen counts involving four alleged street armed robberies that occurred from November 19 to 23, 2002. Among the charges were purposeful murder and felony murder of one of the victims, who had been shot.
In January 2005, defendant was acquitted by a jury of the murder charges and all charges related to two of the incidents.
He was convicted on eight counts of the indictment arising out of the other two robberies. The convictions were for second- degree conspiracy, N.J.S.A. 2C:5-2; two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; one count of second-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.
After merger of several counts, defendant was sentenced on the first-degree robbery counts to two concurrent terms of fifteen years in prison, with eighty-five percent of the term to be served before parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was also sentenced to a consecutive term of seven years in prison subject to NERA for the second-degree robbery conviction, and concurrent four-year terms on each of the two counts charging unlawful possession of a firearm. The aggregate sentence was twenty-two years in prison with no parole eligibility until eighty-five percent of that term has been served. Statutory money penalties were also imposed as part of the sentence.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Nash, No. A-5392-04 (App. Div. June 1, 2007). The Supreme Court denied his petition for certification. State v. Nash, 192 N.J. 598 (2007).
In our earlier opinion on direct appeal, we summarized the facts:
Defendant was convicted for his part in a crime spree that began on November 19, 2002. At approximately 10:30 p.m. that evening, Vitor Baptista, a bartender at a restaurant on Elm Road in Newark, was walking to his car after work when a red two-door car pulled alongside him. The driver of the vehicle signaled him with his headlights, and said something that he could not hear. When he approached the driver's side window, the driver, who Baptista later identified as defendant, pointed a handgun at his chest, and demanded that he give him his money. After he gave defendant approximately $200, the car sped away. Baptista reported seeing two men in the car; although the car windows were tinted, he was able to identify defendant from a photographic display.
At approximately 10:40 p.m. that same evening, Ben Allen, Angel Mota, and Javier Colon were walking in the area of Garside and Second Avenues in Newark. Allen and Colon were walking together, while Mota was walking about thirty feet ahead of them. According to Allen, a man, who he later identified as defendant, approached the men from behind and, with gun in hand, demanded that they give him their coats. As Allen ran, he heard a shot, looked back, and saw Colon on the ground. He ran back to attend to Colon, and saw the man who had approached them enter the passenger-side door of a red, four-door car with a spoiler on the rear. He described the assailant as an African-American male, with a thin, athletic build, between five feet, eight inches and six feet tall. Allen later identified defendant's photograph from a photographic display. Colon died from a gunshot wound to the chest; the shot was fired from a distance of about twelve to eighteen inches.
Mota corroborated much of Allen's testimony. He saw the shooter with a silver handgun, and saw him get into a "darker red" car after the incident. Mota described the shooter as a thin man, slightly taller than five feet, eight inches, with a light-brown complexion. Although Mota conceded that he did not get a very good look at the suspect, he selected defendant's photograph from a display because his physical features most closely resembled those of the person he remembered. Mota admitted, however, that he, Allen, and Colon had been drinking and smoking marijuana before the incident, and that he was "kind of tipsy."
Roughly two hours later, at approximately 12:30 a.m. on November 20, Xavier Chavez was walking on North Sixth Street in Newark, when he observed a two-door, red sedan parked a few houses in front of him. Two heavily-clothed men got out of the car and walked towards him. With guns in their hands, the men began "stripping [Chavez] of [his] clothes." Chavez struggled with them, and ran away. As he ran, the men began shooting at him, but he was not hit. He was able to hide, and the men drove away.
Chavez testified that both men were wearing bandanas on their faces, but he was able to take the bandana off of one man during the struggle. Although he initially told the police that he would not be able to positively identify the man whose ...