April 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALIMEAN TURAY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-05-0729.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 29, 2011
Before Judges Skillman and Roe.
A jury found defendant guilty of second-degree robbery, in violation of N.J.S.A. 2C:15-1. The trial court sentenced defendant as a persistent offender to an extended term of fifteen years imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, we affirmed defendant's conviction in an unreported opinion, but remanded for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006). State v. Turay, No. A-4615-05 (March 6, 2008). The Supreme Court denied defendant's petition for certification. 196 N.J. 344 (2008). On remand, the trial court imposed the same sentence it had imposed originally.
Defendant filed a petition for post-conviction relief, which claimed that his trial counsel had been ineffective in failing to request a Wade*fn1 hearing; failing to investigate a possible alibi; failing to investigate another person suspected of the robbery defendant was found to have committed; and failing to investigate possible ulterior motives of an important government witness, Therashia Robinson, for testifying against him. After briefing and oral argument, Judge Kenny denied defendant's petition by an oral opinion delivered on July 30, 2009.
On appeal, defendant presents the following arguments:
BECAUSE DEFENDANT PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS PCR PETITION, THE COURT BELOW ERRED IN DENYING HIS REQUEST FOR AN EVIDENTIARY HEARING, AND ITS RULING SHOULD BE REVERSED.
A. Defendant's Counsel's Failure to Move For Either a N.J.R.E. 104 Hearing or a Wade Hearing was Ineffective Assistance of Counsel.
B. Defendant's Counsel's Failure to Investigate the Arrest of Mark Atkins in order to Mount a Third-Party Guilt Defense was Ineffective Assistance of Counsel.
C. Defendant's Counsel's Failure to Question Ms. Robinson Regarding her Motives and Medical Condition at the Time of the Crime Was Ineffective Assistance of Counsel.
D. Defendant's Counsel was Ineffective for Failing to Investigate an Alibi Defense.
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO DETERMINE WHETHER THERE WAS AN ATTORNEY CONFLICT-OF-INTEREST AND, IF SO, WHETHER SAME ROSE TO THE LEVEL OF INEFFECTIVE ASSISTANCE OF COUNSEL.
We reject the arguments presented under Point I of defendant's brief substantially for the reasons set forth in Judge Kenny's oral opinion. The argument presented under Point II of defendant's brief is clearly without merit. R. 2:11-3(e)(2). Mere tension between a defendant and his trial counsel does not establish a prima facie case of ineffective assistance of counsel.