On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-12-4770.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2010
Before Judges Axelrad and Lihotz.
Defendant, Erin Ford, appeals from provisions of an August 28, 2006 order, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant and co-defendant Larkeese Collins were charged with numerous offenses in a nine count indictment, stemming from the armed robbery of Abdul-Aziz Harrison and the shooting of Clifton Andrews. Harrison's multi-colored, leather Avirex jacket was taken in the robbery and Andrews was shot after he mumbled he recognized one of the assailants. Collins was granted use immunity prior to trial and appeared as a witness for the State. The jury convicted defendant on all counts.
Defendant's sentencing was delayed until March 23, 2001, because he had fled the jurisdiction. At sentencing, the court imposed an aggregate custodial term of forty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence. State v. Ford, No. A-5867-00 (App. Div. Jan. 14, 2003).
Defendant filed his petition for PCR. On April 4, 2006, the PCR judge agreed that two counts of the indictment should be vacated, otherwise he denied relief premised on the ineffective assistance of counsel and alleged due process violations.
Defendant filed this appeal on April 11, 2009, which was accepted, even though it was filed beyond the forty-five day deadline. See State v. Altman, 181 N.J. Super. 539, 541 (App. Div. 1981). Defendant presents these arguments for our review:
BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.
THE PROSECUTOR'S MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL AND DENIED HIM DUE PROCESS OF LAW.
In a supplemental pro se submission, defendant asserts:
COUNSEL WAS INEFFECTIVE FOR ELICITING HIGHLY PREJUDICIAL INFORMATION DURING CROSS-EXAMINATION OF A PROSECUTION WITNESS THAT DEFENDANT POSSESSED A NINE MIL[L]IMETER HANDGUN PRIOR TO THE OFFENSE FOR WHICH DEFENDANT WAS CHARGED.
We first set forth the appropriate standards that apply when considering an application for post-conviction relief. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." ...