On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-09-1707.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2011 Before Judges Graves and Waugh.
Defendant Jose Cruz appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.
I. In September 2000, Cruz and three co-defendants, Modesto Rodriguez, Adam Rubeen, and Roman Alexander, were indicted for first degree armed robbery, N.J.S.A. 2C:15-1 (Count I); second degree burglary, N.J.S.A. 2C:18-2 (Count II); third degree theft, N.J.S.A. 2C:20-3 (Count III); first degree kidnapping, N.J.S.A. 2C:13-1(b) (Count IV); third degree threats to kill, N.J.S.A. 2C:12-3(b) (Count V); fourth degree possession of a knife or knives under circumstances not manifestly lawful, N.J.S.A. 2C:39-5(d) (Count VI); and third degree possession of a knife or knives for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count VII). Cruz was tried separately in May and June 2003. He was acquitted on Counts VI and VII, and convicted on the remaining counts.
In our opinion on Cruz's direct appeal, we outlined the underlying facts as follows:
The convictions arose out of a home invasion of William Cottrell and theft of about $124,000. The evidence at trial revealed that the victim had a sister-inlaw, Judy Rolon, who was involved in the drug trade and who was dating [Cruz], a/k/a "Chickie." Apparently when Cottrell was not home, [Cruz] would bring large sums of money to Cottrell's house, and Rolon would hide it there. [Cruz] devised a plan and recruited co-defendants to break into the house, telling them there was a significant amount of money inside, and no one was home.
On November l0, 1999, [Cruz] picked up Rodriguez, Rubeen and Alexander in his white BMW and drove them to Cottrell's house in Rochelle Park. At about 5:30 p.m. they broke in, grabbed Cottrell and threatened him while brandishing knives. They then tied him up for several hours, refusing to give him his heart medicine, while they ransacked the house and struggled with the upstairs safe. The men talked in Spanish to one another, and Cottrell heard someone identified as "Chickie."
After Rubeen found the cash under a sauna, bundled with a label stating the amount, the assailants left the house. They walked by the railroad tracks for about a mile to a bar where [Cruz] picked them up in his car. They then drove back to New York City, where they divided the money evenly at a laundromat in the Bronx and parted company.
At about 10:00 p.m., after the intruders left, Cottrell was able to run next door for help, still tied to the chair. His neighbor unbound Cottrell's hands and called the police. The police arrived soon thereafter, while Cottrell was still pale, shaking, and clutching his chest while claiming an incipient heart attack. Cottrell provided the officers with a description of the incident and intruders and was transported to Hackensack University Hospital.
Defendants were apprehended after a lengthy investigation. Upon their arrests in New York City, Rubeen and Alexander made formal statements to the Bergen County Prosecutor's Office and the Rochelle Police Department, which they later recanted at [Cruz]'s trial, claiming they were on drugs at the time. More particularly, on March 6, 2000, Rubeen viewed photographs and made a statement in which he described the incident, identified [Cruz] as the planner of the crime and driver, and identified [Cruz]'s white BMW as the means of transportation. He also identified Rodriguez as another participant, and admitted that the four of them evenly split the $124,000 robbery proceeds. On July 20, 2000, Alexander admitted his involvement in the crime and similarly identified the photographs of [Cruz], Rubeen and Rodriguez as his accomplices and the white BMW as the means of transportation. Following a Gross*fn1 hearing, the statements were admitted.
[Cruz] and Rodriguez were arrested on March 7, 2000. The next day when [Cruz] was served with the complaint, he blurted out the following inculpatory statements: "How could I be charged with theft when I didn't take anything?" and "We only got $80,000 out of the house and, okay, I drove them, but I didn't go in the house." [Cruz] was convicted, the jury specifically having found him to have been an aider and an abettor. [State v. Cruz, No. A-0916-03T4 (App. Div. Mar. 10, 2006) (slip op. at 3-6).]
The trial judge sentenced Cruz to a twenty-five year term on Count IV, subject to parole ineligibility of eighty-five percent of the term. The judge also sentenced Cruz to a twenty-year concurrent term on Count I, a ten-year concurrent term on Count II, and five-year concurrent terms for Counts III and V.
Cruz appealed. We affirmed his conviction, but remanded for resentencing under State v. Natale, 184 N.J. 458 (2005). State v. Cruz, supra, slip op. at 10. The Supreme Court denied certification. State v. Cruz, 187 N.J. 82 (2006). A different judge presided at the sentencing remand. He merged Count III into Count I, and imposed the same terms on the remaining counts. Consequently, Cruz again received an aggregate sentence of twenty-five years with an eighty-five percent period of parole ineligibility. Cruz appealed the new sentence. The appeal was heard as part of a sentencing calendar, and we affirmed the new sentence in an order filed September 16, 2008.
Cruz filed his PCR petition in December 2008.*fn2 He argued that both his trial counsel and appellate counsel provided ineffective assistance such that he was deprived of his constitutional right to the effective assistance of counsel. Following oral argument on June 2, 2009, the judge who had handled the resentencing denied the petition. This appeal followed.
II. On appeal, Cruz raises the following issues:
POINT I: DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO TRIAL COUNSEL'S FAILURE TO PRESENT SANDRA FERNANDEZ AS AN ALIBI WITNESS AND SUBSEQUENTLY REQUEST THE TRIAL COURT TO CHARGE THE JURY ON ALIBI DEFENSE.
A. TRIAL COUNSEL'S FAILURE TO PRESENT SANDRA FERNANDEZ AS AN ALIBI WITNESS AND SUBSEQUENTLY REQUEST THE TRIAL COURT TO CHARGE THE JURY ON ALIBI DEFENSE ...