On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-08-2748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011 - Decided
Before Judges Wefing and Baxter.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant of carjacking, N.J.S.A. 2C:15-2; kidnapping, N.J.S.A. 2C:13-1b(1); and robbery, N.J.S.A. 2C:15-1. The trial court sentenced defendant to an aggregate term of twenty years in prison, subject to the parole ineligibility provisions of N.J.S.A. 2C:43-7.2 (No Early Release Act or NERA). Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Fogel, No. A-1281-05 (App. Div. Dec. 13, 2007).
In our opinion, we summarized in the following manner the factual background that led to the charges against defendant:
Defendant's convictions rested upon an incident that occurred on the evening of June 6, 2004. Deborah Freeman, then seven months pregnant, left her husband and children at home and drove to several nearby stores for a quick errand. Driving her Suburban, a large vehicle with three rows of seats, she stopped first at a CVS drug store and then drove to a nearby QuickChek. When she returned to the car from the QuickChek she started to drive to get gas when she heard a noise from the third row of seats. She thought it was her oldest boy, who would often try to play a trick upon her. Instead, she looked into the rear view mirror and saw a man climbing forward from the rear of the Suburban. He told her he had a gun and would not hurt her if she did as she was told. He instructed her to drive him to a location in East Orange and she complied. When they arrived, he asked for her money and she handed over eighty dollars. He also demanded her car keys and got out of the vehicle and went into a nearby house. Ms. Freeman did not know the area in which they were stopped; she testified there were a number of people around but it struck her as an area in which people dealt in narcotics, and she was afraid to get out of the car. The man then returned to the Suburban, gave her the keys, and told her to drive to a second location, where he again took the keys and left her briefly. This area she described as more secluded than the other. She still did not know where she was and was afraid to leave the vehicle. The man again returned to the car and told her to drive off. He gave her directions and eventually told her to stop at a certain point. He got out of the car and she saw him run across the Garden State Parkway, which at that point had eight lanes of traffic. She returned home and, crying hysterically, told her husband to call the police. She estimated that the entire ordeal lasted approximately forty-five minutes to an hour.
Ms. Freeman provided a description of the intruder and the following day a policeman saw a man matching that description near the QuickChek; it turned out to be defendant. The police went to his home, and he agreed to accompany them to the police station. There, after being advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), he confessed. Later, Ms. Freeman picked out defendant's picture from a photo array.
Defendant's statement was received in evidence at his trial after the trial court held a hearing to determine its admissibility. The trial court rejected defendant's claim that he was slapped and choked by the police before giving this statement.
In his petition for post-conviction relief defendant raised a variety of issues, the principal one being that his trial attorney provided ineffective assistance when he withdrew defendant's alibi defense. The trial court rejected this contention, as well as defendant's other arguments and this appeal followed.
Defendant raises the following arguments on appeal.
THE PCR COURT ERRED BY DENYING MR. FOGEL A HEARING ON HIS CLAIM THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO INVESTIGATE AND PRESENT MR. FOGEL'S ALIBI WITNESS.
THE CLAIMS IN MR. FOGEL'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).
The standards which govern our analysis of defendant's contentions that he was deprived of the effective assistance of counsel are well-known. To prevail on a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S. Ct. 2039, ...