On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-11-3062, 00-11-3063, 00-11-3064, 00-11-3065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges Lisa and Alvarez.
Defendant Jeffrey Wise appeals from the May 6, 2009 denial of his application for post-conviction relief (PCR). For the reasons that follow, we affirm.
On September 6, 2002, after trial by jury, defendant was sentenced on four separate but related indictments to an aggregate forty years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). On count one of Essex County Indictment No. 00-11-3062, first-degree robbery, N.J.S.A. 2C:15-1, defendant was sentenced to twenty years subject to NERA; count three, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), was merged with count one. On count two, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), defendant was sentenced to a concurrent five years. In two separate Essex County Indictments, Nos. 00-11-3063 and 00-11-3065, defendant was charged with second-degree persons not to possess weapons, N.J.S.A. 2C:39-7(b), and concurrent sentences of ten years were imposed on each. Additionally, on counts one and two of Essex County Indictment No. 00-11-3064, both first-degree robberies, defendant was sentenced to concurrent twenty-year sentences subject to NERA, consecutive to the terms on the earlier indictments. Defendant received a five-year concurrent sentence on count three of that indictment, third-degree unlawful possession of a weapon, while count four, a second-degree possession for an unlawful purpose, was also merged into count one. Appropriate fines and penalties were imposed.
Defendant's direct appeal and petition for certification were denied. State v. Wise, No. A-4148-02 (App. Div. Dec. 27, 2004), certif. denied, State v. Wise, 183 N.J. 587 (2005). Although it was not decided until May 6, 2009, he filed this pro se petition for PCR on March 2, 2006.
The charges stemmed from two separate robberies occurring on August 22 and August 25, 2000. The victim, Claude Thomas, was the same in both instances; in the second incident, Thomas's nephew Shawn Moon was also robbed. On the first occasion, Thomas entered a particular housing complex in Newark to purchase heroin at approximately 7:30 p.m. He approached defendant, who claimed to be selling "good" drugs and asked Thomas to follow him. They walked towards the rear of the building when defendant suddenly put Thomas in a headlock. A third man appeared who pointed a handgun at Thomas and asked, "you want some of this?" Defendant took $70 from Thomas's pocket, and he and his accomplice fled. Thomas reported the incident to two uniformed Newark Police officers in the vicinity. Although they drove away in a marked vehicle, purportedly in search of the perpetrators, the officers never came back and no report was filed.
When Thomas returned to the same building to buy drugs with Moon around 2:00 a.m. on August 25, he encountered defendant and his accomplice once more. This time both drew guns; defendant brandished a weapon that appeared to be a .38 revolver. Defendant and his accomplice rummaged through the victims' pockets, this time taking $40 from Thomas. Thomas reported the incident to officers in a passing patrol vehicle, who searched the area without success. Thomas and his nephew were driven to the station where, after questioning, they were permitted to leave. Again, however, no police report was filed.
On August 28, at approximately 12:30 p.m., Thomas saw defendant near the scene of the robberies and immediately located two police officers. As the officers escorted defendant back towards Thomas to confirm his identification of the perpetrator, defendant indicated, according to the arresting officer who testified at trial, that he "didn't know what was going on . . . . He was unaware of why -- basically, he didn't even know the other gentleman, never came in contact with him from what I could tell." When arrested, defendant had $30.50 in his possession. At the police station, Thomas was informed no reports had been filed about the August 22 and August 25 robberies. He then gave statements as to both incidents.
Months prior to trial, defense counsel had an on-the-record discussion with the court as to whether the four indictments would be tried jointly. Subsequently, the State apparently made a joinder application which was granted, although we have no record of those proceedings.
At a March 7, 2001 pretrial conference, the court asked defense counsel about the status of witnesses whose names defendant had recently provided. Counsel explained he was experiencing some difficulty in locating them. The court directed that summaries of the proposed witnesses' testimony be supplied by March 9, 2001.
On that date, counsel advised the court that, although defendant had spoken to possible witnesses, they would not be available until the following Monday and, as a result, the judge granted an extension of time. No further record has been supplied with regard to this issue.
On the first day of trial, April 3, 2001, counsel explained that, on two occasions since the March 9 status conference, he had attempted to subpoena the following witnesses at addresses supplied by defendant: Lori Banks, Philip Malone, Amira Malone, and Carla Ware. Initially, investigators were not able to serve the subpoenas or conduct interviews because they could not gain access to the apartment building where the witnesses lived. Investigators were able to gain entry during a second visit, but the person occupying the apartment to which defendant directed them denied knowing him or any of the witnesses. Defendant was then given the subpoenas so he could attempt service himself, but they inadvertently noticed the witnesses for the wrong court date. When counsel learned of the mistake, he sent out new subpoenas by overnight mail. Defendant also attempted to serve corrected subpoenas the night prior to, and the morning of, trial, but was not successful.
Although he claimed to have served the subpoenas bearing the wrong court date, defendant did not supply any proof of service. The record does not identify any witnesses ever appearing on defendant's behalf, and counsel only summarized the anticipated testimony of one witness, Philip Malone. In support of the defense theory that Thomas's accusations were trumped-up falsehoods, Malone would corroborate that, immediately prior to his arrest on August 28, 2000, defendant sold Thomas less cocaine than Thomas paid for and the two men had argued as a result. Although counsel acknowledged none of the proposed witnesses, including Malone, had any information regarding either robbery, he contended that Malone's testimony was supported by the absence of any robbery reports filed with the Newark Police Department.
Defendant testified that on August 28 he sold Thomas $30 worth of cocaine for $50. Five minutes later, Thomas returned demanding a $20 refund. They argued, Thomas left, and approximately fifteen minutes later defendant was arrested. On cross-examination, he explained the difference between the $50 Thomas allegedly paid him and the $30.50 in his possession at the time of arrest as attributable to his purchase of $20 worth of marijuana, which he smoked with others until taken into custody.
As a final summation comment, the prosecutor stated:
In conclusion, I just want to say that on August 22nd Mr. Thomas was victimized, he was robbed. On August 25th both Shawn Moon and Mr. Thomas were victimized again. Later . . . on the 25th, to some degree, they were victimized a third time, unfortunately, by the system when they attempted to report . . . what had happened to them. Please don't let them be victimized again by the system here today.
The State contended that defendant was guilty both as a principal and as an accomplice; therefore, the judge charged the jury on both theories, adhering to the model jury charges. The judge also gave the jury instructions as to first- and second-degree robbery.
On May 10, 2002, the court denied defendant's application for a new trial. At sentencing, the court declined the State's application to impose a discretionary extended term of imprisonment on defendant as a persistent offender. See N.J.S.A. 2C:44-3a.
In support of his petition for PCR, defendant produced affidavits from Arlene Fields, with whom defendant has two children, and Edward Harris. In her July 16, 2008 affidavit, Fields said that on August 22, 2000, she and defendant attended an all-day cookout; hence, he could not have committed a robbery. She also averred that because defendant visited with their children from 9:00 a.m. to about 6:00 p.m. on August 25, 2000, he did not commit a robbery on that date either.
Harris, incarcerated when he signed his affidavit on July 16, 2008, purported to be a long-time friend of defendant. He too claimed he attended the August 22 cookout, remembered seeing defendant there, and denied any robbery took place in that general area on that date. Furthermore, he was present on August 28, 2000, when a man approached defendant asking about cocaine. Defendant sold the man "a clip of cocaine" and returned a few minutes later to demand a refund. Shortly thereafter, defendant was arrested.
The court denied defendant's petition for PCR in a lengthy oral opinion, principally because it was untimely. The judge also determined the certifications submitted in support of the application lacked credibility, among a host of other reasons with which we agree.
On appeal, defendant raises the following issues:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Trial counsel failed to object to inflammatory and inappropriate remarks made by the prosecutor during closing argument
B. Trial counsel was ineffective in failing to propose an adequate charge and in failing to object to the erroneous charge
C. Trial counsel failed to investigate potential witnesses
D. Trial counsel failed to file a motion to suppress defendant's ...