On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 02-07-2656 and 01-03-1436.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2011 - Decided Before Judges Grall and LeWinn.
Defendant Shamsid-Deen Knight appeals from the denial of his petition for post-conviction relief (PCR). The underlying convictions are for crimes charged in separate indictments. On the first indictment, a jury found defendant guilty of murder, N.J.S.A. 2C:11-3a; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4a; and eluding, N.J.S.A. 2C:29-2. On the second, defendant pled guilty to two counts of first-degree robbery, three counts of second-degree robbery and one count of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.
On direct appeals, which were consolidated, we concluded that statements about the homicide and robberies that defendant gave to the police after his arrest at the scene of the homicide were involuntary; accordingly, we reversed his convictions. State v. Knight, 369 N.J. Super. 424, 441, 443-44 (App. Div. 2004). The Supreme Court, however, reversed those determinations and remanded for us to consider other issues that defendant had raised and we did not address. 183 N.J. 449, 467-70, 472 (2005).
On remand from the Supreme Court, we affirmed the convictions but remanded for correction of errors in the sentences reflected on both judgments of conviction. State v. Knight, Nos. A-2993-02 and A-4099-02 (App. Div. Aug. 7, 2006) (slip op. at 19) (Knight II). The Supreme Court then denied defendant's petition for certification. 189 N.J. 426 (2007).
Defendant subsequently filed this application for PCR, and his attorney filed a supporting brief. Defendant contended he was denied effective assistance of counsel at his trial and on his guilty plea. He claimed that trial counsel failed to: effectively cross-examine the State's witnesses; object to the trial judge's participation; present an intoxication defense; present expert testimony; submit DNA evidence; and object to the prosecutor's summation. He contended that plea counsel failed to review discovery relevant to the robbery charges and explain the consequences of his guilty plea. Defendant did not support his arguments or his request for an evidentiary hearing on the petition with any certification or with documents referencing facts outside the record. Thus, the trial judge was given no new information tending to support an intoxication defense, establish the value of DNA evidence or expert opinion, or demonstrate the inadequacy or inaccuracy of information and advice given by plea counsel.
The facts of the homicide case and the several robberies are recited in the initial decision of this court and the Supreme Court's decision. We summarize those facts here.
The victim of the homicide was a cab driver, and defendant was his passenger. In the early morning hours, the taxi, a Navigator SUV, stopped outside the home of Kim Smith. Defendantgot out, stood in front of the home, and called for Smith's son to come outside. Smith saw and heard defendant; she recognized him, was frightened by his behavior and called 911. Defendant got back in the cab, and the police arrived as the driver pulled out of the driveway.
The police followed the taxi until the driver pulled over. At that point, the officers stopped and approached on foot. They heard a shot fired from the passenger side and returned fire. After another shot was fired inside the cab, it was driven away, swerving as it traveled and gun shots being fired from it. When the taxi stopped, the police found the driver slumped over the steering wheel, defendant halfway between the passenger and driver's sides, and a gun and clothes scattered nearby. The only evidence suggesting defendant's conduct was attributable to intoxication were his "rapping and rocking" and "wired" appearance at police headquarters and his explanation for having removed his clothes - he was hot because he had smoked a "couple of blunts." He claimed the shooting was accidental.
Defendant's robberies all involved banks. In each case defendant handed the teller a note demanding money; in one note he also threatened to use a shotgun. Defendant pled guilty to the robberies after the jury in the homicide case found himguilty of murder. The plea was entered pursuant to an agreement with the State. In return for defendant's guilty plea, the State promised to recommend an aggregate sentence less than the minimum term for murder and fully concurrent with defendant's sentence on the murder conviction. At the plea hearing, defendant's attorney elicited the factual basis for each count and noted that defendant was pleading guilty with the understanding that if his murder conviction were reversed on appeal, defendant would seek to vacate this plea.*fn1 Defendant acknowledged the truthfulness of statements he made about the robberies after the police showed him a surveillance video and photos that depicted him.
The judge who presided over defendant's homicide trial also considered defendant's petition for post-conviction relief. With respect to defendant's guilty plea, the judge reviewed the transcript of that proceeding prior to the hearing. The judge heard argument on defendant's petition, and on April 7, 2008 he issued a written decision setting forth his reasons for denying relief without an evidentiary hearing.
Defendant raises these issues on appeal:
I. MR. KNIGHT IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ...