On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 98-03-0219.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Yannotti.
Defendant Kwesi Hudson appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was found guilty on five counts of first-degree robbery, N.J.S.A. 2C:15-1a(2); one count of third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d; and one count of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d.*fn1 We recount the facts underlying this criminal episode as stated in our unpublished opinion affirming defendant's convictions:
Around midnight on December 15, 1997, two eyewitnesses saw two black men outside a Blockbuster Video store in Woodbury. One of them observed the men alight from a car and change into dark clothing. The other saw them standing outside the store, peeking in through a window and ducking down. He also saw one of them "put his hoodie on . . . ." After the men then ran into the store, the first witness called the police and the second witness ran to a police officer who was in a nearby parking lot and said the store was being robbed.
Jason Croce, a Blockbuster employee, who was cleaning windows in the store's vestibule, saw the men, who were wearing ski masks, approach the door. One of the men pointed a gun at him, ordered him to back up, and struck him in the face when he did not move fast enough. Croce, after being kicked a couple of times by the man with the gun, entered the store, and the men followed.
The man with the gun ordered Croce, April Foster, Gabrielle Dariano, John Strouse and Jason Monzo to get on the floor and screamed at them, demanding their wallets. The other man approached Laura Delacour, who was attending to the cash register. He pointed a large knife at her and demanded that she open the cash register. When she said she could not comply, he told her to lay next to the other victims. All of this activity was recorded on the store's videotape and still photography equipment.
Two police officers, who had reported to the scene, watched as the men fled the store still wearing their ski masks. The men discarded items as they ran with the police in pursuit. The police found a purse and a wallet belonging to the victims, a 9mm handgun, and a knife with an eight-inch blade.
Both men were captured after short chases. The knife was found near defendant. A search of defendant's apartment revealed a "Faberware" ultra-edge knife set with one knife missing. The knife found near defendant was of the same make and "fit in the slot" of the missing knife. Also found in the apartment was a receipt for the purchase of the 9mm handgun, listing defendant as the purchaser.
At trial, defendant testified, admitting that he participated in the robbery, that he was the man with the knife, and that his co-defendant was the man with the gun, a gun that he admitted giving to the co-defendant for the purpose of the robbery. He said that he did not expect that they were going to rob the patrons. Rather, he believed the targets were the cash register, which he was to take care of by dealing with the attendant, and the back of the store, where they hoped to find more money, which was to be handled by his co-defendant.
[State v. Hudson, No. A-6506-01 (App. Div. Feb. 26, 2004) (slip op. at 2-4), certif. denied, 180 N.J. 357 (2004).]
For each of the robbery convictions, defendant received a concurrent sentence of imprisonment for twenty years, with seventeen years to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For the third- degree weapons offense, which was subsequently merged with the fourth-degree weapons offense, he received a concurrent sentence of five years with eighty-five percent to be served without parole pursuant to NERA. On appeal, we affirmed the convictions but remanded for merger of the sentence on the weapons offense. State v. Hudson, supra, slip op. at 7. We also found to be without merit defendant's argument that the trial judge committed reversible error by failing to direct the jury to determine, beyond a reasonable doubt, whether defendant was guilty of a "violent crime," as then defined by NERA. Id. at 5-6. On May 21, 2004, the Supreme Court denied defendant's petition for certification. State v. Hudson, 180 N.J. 357 (2004).
Defendant filed a PCR petition on March 23, 2007, contending that NERA's application to his twenty-year sentence for robbery was illegal because the jury did not make a finding that defendant committed a "violent crime," as defined by NERA. Defendant also argued ineffective assistance of counsel, violation of the constitutional prohibition against ex post facto laws, violation of his right to a speedy trial, and due process deprivation due to the jury's inability to evaluate the evidence because of the cold temperature in the courtroom. The PCR judge denied the petition, concluding:
First, . . . the jury's ability to evaluate the evidence. I am not persuaded that the trial judge's single statement of a less than optimal courtroom climate is evidence that the defendant's constitutional rights were violated. I do not believe that this statement leads to a finding that the jury was unable to weigh the evidence due to the temperature. . . . I note that there was no evidence presented to this Court that defense counsel objected to the continuation of the trial or requested that ...