January 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN ROBINSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-07-2651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Graves and Waugh.
Defendant John Robinson appeals from an order dated June 19, 2009, denying his petition for post-conviction relief (PCR).
A jury convicted defendant of kidnapping, armed robbery, possession of a handgun with a purpose to use it unlawfully, and other less serious offenses. On June 21, 1991, the court sentenced defendant to an aggregate fifty-year term of imprisonment with a twenty-five-year period of parole ineligibility consecutive to a sentence he was then serving. Defendant appealed and, in an unpublished opinion, we affirmed the convictions and sentence but merged one of the weapons convictions with the conviction for possession of a knife for an unlawful purpose. State v. Robinson, No. A-6189-90 (Dec. 11, 1992). In our prior opinion, we noted that "identification was the central issue in the case," and we summarized the pertinent facts as follows:
The nineteen-year-old victim Karen Halas was kidnapped in a shopping center parking lot in Wayne by a man and woman who were brandishing a gun and a knife. She was repeatedly threatened with death, driven to Newark, robbed, and left tied and gagged in a building. She eventually was able to release herself after some hours. She viewed mug-shot books without success, and later prepared composite drawings of the man and woman involved.
Some two weeks later, Ms. Halas's mother saw a television news program which included photographs of a couple who looked like the composite drawings her daughter had produced. She was able to videotape the news program, and took the tape to her daughter to see. Ms. Halas immediately recognized the couple as the people who had kidnapped and robbed her. Some weeks later, Ms. Halas went to Bergen County, where she viewed lineups and listened to persons speak certain phrases that the kidnappers had spoken. She picked out defendant and his wife Nora as the people involved. Nora Robinson eventually pleaded guilty, leaving defendant to be tried alone.
On November 15, 2005, defendant mailed the Essex County criminal records manager a letter and a pro se brief in support of a petition for PCR. Defendant asserted that his "convictions should be reversed and a new trial ordered" because his trial counsel and appellate counsel were ineffective. In a subsequent submission, defendant provided the following reasons for failing to file his petition within five years after he was sentenced:
"When I was transferred in the prison system, all my legal materials were lost and/or destroyed. Secondly, I was not timely informed of the denial of my first appeal which further delayed the filing of my Verified Petition."
Following the assignment of counsel, the submission of briefs, and oral argument, the PCR court denied defendant's petition for the reasons set forth in a thirteen-page written decision. The court determined that defendant's PCR claims were time-barred because his petition was not filed in compliance with Rule 3:22-12, and the delay was not attributable to either excusable neglect or exceptional circumstances. State v. Goodwin, 173 N.J. 583, 595 (2002). Nonetheless, the court considered defendant's petition on its merits and rejected each of defendant's claims.
On appeal, defendant presents the following arguments for our consideration:
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS DUE TO HIS FAILURE TO CONSULT ADEQUATELY WITH DEFENDANT.
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO THE IMPERMISSIBLE SUGGESTIVENESS OF THE VICTIM'S OUT-OF-COURT IDENTIFICATION OF DEFENDANT, GIVING RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, AND THEREBY DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.
THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO THE TRIAL COURT'S EXCLUSION OF A CROSS-RACIAL IDENTIFICATION INSTRUCTION TO THE JURY (Not Raised Below).
Based on our review of the record and applicable law, we affirm the order denying defendant's petition substantially for the reasons set forth in Judge Jerome M. St. John's written decision on June 19, 2009. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).
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