On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 00-10-0586.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010 -- Decided Before Judges Axelrad and R. B. Coleman.
Defendant Alonzo Price appeals from an order dated January 14, 2009 denying his petition for post-conviction relief (PCR). He asserts he made a prima facie showing that his constitutional rights were violated and that he was denied a fair trial due to ineffective assistance of counsel. He also reasserts every issue raised in his PCR petition. We have considered his arguments in light of the facts and applicable law, and we affirm the order denying his petition.
On August 19, 2004, a jury found defendant Alonzo Price guilty of two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts one and two); two counts of second-degree burglary, N.J.S.A. 2C:18-2 (counts three and four); one count of third-degree burglary, N.J.S.A. 2C:18-2 (count five); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts six and seven); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3 (counts eight and nine); one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eleven); one count of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count thirteen); one count of theft as a disorderly persons offense, N.J.S.A. 2C:20-3 (count fourteen); and one count of third-degree theft, N.J.S.A. 2C:20-3 (count fifteen).
The court sentenced defendant as a persistent offender, N.J.S.A. 2C:44-3(a), to a discretionary extended term. The extended term resulted in an aggregate sentence of life in prison with a twenty-five year period of parole ineligibility, plus thirty years in prison with fifteen years of parole ineligibility.
The convictions arose out of two residential burglaries in Woodbine, which occurred one week apart and involved female occupants living alone. In each burglary, the women were sleeping in their bedrooms when someone broke into their homes, threatened them, bound and robbed them.*fn1
Defendant appealed his conviction and sentence. In a per curiam opinion, we affirmed defendant's conviction but dismissed his third-degree theft conviction on double jeopardy grounds and remanded the case for re-sentencing on all counts. The Supreme Court denied defendant's petition for certification. State v. Price, 190 N.J. 256 (2007).
Defendant filed a pro se motion for PCR. Later, defendant, assisted by counsel, submitted a supplemented petition for PCR. After a hearing, Judge Raymond A. Batten denied defendant's petition for PCR. Defendant filed this appeal and asserts he made a prima facie showing of ineffective assistance of counsel. More particularly, he raises the following points:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED.
POINT II: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION TO SUPPRESS ADMISSION OF THE CIGARETTE BUTT;
TRIAL COURT'S FAILURE TO SUBMIT SAMPLES OF THE DEFENDANT'S HAIR FOR COMPARATIVE DNA TESTING; TRIAL COUNSEL'S FAILURE TO PURSUE SUPPRESSION OF THE "FRUIT OF THE POISONOUS TREE" ARISING FROM THE INVALID ARREST WARRANT AND THE IMPROPER VOICE IDENTIFICATION; AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE JURY CHARGE ON THE DEFENDANT'S ELECTION NOT TO TESTIFY;
RESULTED IN A PRIMA FACIE DEFICIENT PERFORMANCE UNDER THE FIRST PRONG OF THE ...