On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-12-2320.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
Defendant Rasheed Gumbs appeals the denial of his petition for post-conviction relief (PCR). He raises the following points for our consideration:
THERE WAS AN INSUFFICIENT FACTUAL BASIS GIVEN BY DEFENDANT TO SUPPORT HIS CONVICTIONS, AND DEFENDANT SHOULD BE PERMITTED TO HAVE HIS PLEA OF GUILTY VACATED. R. 2:10-2. (Raised Below)
DEFENDANT SHOULD BE PERMITTED TO HAVE HIS PLEA OF GUILTY VACATED AS IT WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY ENTERED INTO. (Raised Below)
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL. (Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant was indicted by the Essex County grand jury and charged with the first-degree murder of Jewell Noon, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree attempted murder of Lucas Campbell and Tony Wardrick, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) and (2); second-degree aggravated assault of Campbell and Wardrick, N.J.S.A. 2C:12-1(b)(1); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-degree possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4(a). Although the circumstances are not disclosed in the record, the State amended the murder charge to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4.
The State alleged that defendant shot and killed Noon as he slept in a house adjacent to an alley that ran between Seventh and Eighth Avenues in Newark. It was undisputed that defendant did not intend to shoot or kill the victim; rather, the State contended that Noon was struck by a stray bullet fired by defendant in the direction of Wardrick and Campbell.
At trial, Wardrick testified that on the evening in question, he and Campbell were in the alley speaking to some girls they knew.*fn1 Someone on a bike rode by the alley and Campbell told Wardrick that the man had a gun. Together, they ran toward the back of the alley, "to the back of the house, [and] peeped out through the alleyway." The man on the bike came back to the alley and said, "That's you," and "started shooting." Wardrick and Campbell ran as "numerous" shots were fired.
Wardrick was unable to identify defendant in court. The prosecutor's attempt to have Wardrick identify a photograph of defendant that he allegedly selected during police questioning elicited equivocal answers. After a side bar discussion that is not transcribed, Wardrick was permitted to read to the jury the entire statement he provided to the police. In it, Wardrick claimed that the man on the bike pulled into the alley and asked, "'Is that you[?]'" When he and Campbell ran, the man fired five shots in their direction. The statement also detailed Wardrick's selection of defendant's photo from an array shown to him by the police. At trial, however, Wardrick claimed that although he selected the photo, the police suggested to him that defendant was the suspect.
During jury deliberations, defendant accepted a plea bargain and agreed to plead guilty to aggravated manslaughter, aggravated assault upon Wardrick, unlawful possession of a firearm and possession of the firearm with an unlawful purpose. In return, the State agreed to a maximum sentence of twenty years, with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The balance of the indictment was to be dismissed at sentencing.
At the plea allocution, defendant was placed under oath and questioned by defense counsel. We quote the colloquy at length because it is central to the issues presented on appeal.
Q. [O]n [July 1, 2000] did you come into contact with someone who attempted to rob you at knife point and with mace?
Q. And as a result of your being robbed . . . did you get a weapon, . . . a handgun that you had, to attempt to go after the person that had attacked you?
Q. While you were attempting to go after the person that had robbed you, did you . . . find yourself in the area of 150 South Eighth Avenue . . . ?
Q. And while you were there, did you take the handgun and fire down the alleyway toward the ...