On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-03-1091.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Wefing and Baxter.
A jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; resisting arrest, N.J.S.A. 2C:29-2a; and hindering apprehension, N.J.S.A. 2C:29-3b(4). 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, the No Early Release Act. Defendant appealed his convictions and sentence, and we affirmed his convictions but remanded for resentencing. State v. McClain, No. A-5805-03T4 (App. Div. June 26, 2006) (slip op. at 3). The Supreme Court denied defendant's petition for certification. State v. McClain, 189 N.J. 430 (2007).
Defendant filed a timely petition for post-conviction relief, and counsel was assigned to represent him. After considering the briefs submitted in support of the petition, and the oral argument presented, the trial court denied the petition. This appeal followed.
In our earlier opinion, we summarized the evidence presented at defendant's trial in the following manner:
Evidence introduced by the State established that the victim, George Haley, had traveled to a bar on Lyons Avenue in Irvington with two women to purchase beer, while a friend, George Gayles, accompanied them in a separate car. Both men parked their cars at a nearby Sunoco station. Gayles remained in his vehicle while the other three made their purchase. On their return, Gayles saw that Haley was being followed, but was unable to alert him to that fact. While Gayles watched, Haley was hit over the head with a gun by the assailant, who demanded money. Eventually, the assailant hit Haley in the head four times and took Haley's wallet, as well as the purses of the two women and jewelry. When, during the course of a struggle over the gun, it fired, Gayles took off and eventually summoned the police.
Upon the police's arrival, the assailant was found with his arm in a car that was later observed to contain the two purses, jewelry and a gun. After he was captured following a pursuit, he was found to have Haley's wallet on his person. Defendant was identified by Haley as the assailant.
Although defendant did not testify, he presented as an alibi witness Randy Harris, who testified that he and the defendant had been in the bar with two women. Eventually, they left, entering Harris's car to "talk." Defendant returned to the bar shortly before the police's arrival. Harris stated that he did not witness any robbery while he and defendant were together. [State v. McClain, supra (slip op. at 4-5).] Defendant submitted a pro se petition and brief in support of his position, as well as several additional pro se submissions, including one after the trial court heard oral argument on the petition, detailing the reasons why, in his view, he was deprived of the effective assistance of counsel at his trial. His counsel also prepared a brief on behalf of defendant, outlining reasons why the court should conclude that defendant's trial attorney should be deemed to have provided ineffective assistance.
In particular, defendant made the following contentions in connection with his petition. He raised the following claims in his first pro se brief:
POINT I: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. POINT II: PETITIONER RESERVES THE RIGHT TO BRIEF ADDITIONAL ISSUES AS THEY MAY APPEAR, AND UPON ASSIGNMENT OF COUNSEL.
Defendant submitted an additional pro se brief at oral argument, raising the following contentions:
POINT I: THE TRIAL COURT ERRED WHEN JUDGE, IN HER JURY INSTRUCTION, RENDERED VERDICT INSTEAD OF THE JURY IN VIOLATION OF THE SIX [SIC] AND FOURTEENTH AMENDMENT[S] OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. POINT II: TRIAL COURT FAILED TO INSTRUCT JURY, SUA SPONTE, OF THE CRIME IN ISSUE, CAUSING A SHIFT IN BURDEN OF PROOF, IN VIOLATION OF THE SIXTH (6) AND FOURTEENTH (14) AMENDMENT[S] ...