On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-06-2203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Ostrer.
Defendant appeals from the trial court's denial, without an evidentiary hearing, of his second petition for post-conviction relief (PCR). We affirm.
Almost seventeen years ago, on June 4, 1994, a jury found defendant guilty of second degree robbery, second degree aggravated assault, and third degree possession of a weapon for an unlawful purpose. On June 21, 1994, the court sentenced defendant on the robbery as a persistent offender to an extended term of twenty-years, with ten years of parole ineligibility, concurrent with an eight-year term, with four years of parole ineligibility on the aggravated assault. The weapons charge was merged into the aggravated assault conviction. The sentence was consecutive to one that defendant was then serving on a separate indictment.
We affirmed defendant's conviction on direct appeal on April 18, 1996, State v. McCray, A-2376-94 (App. Div. Apr. 18, 1996), and the Supreme Court denied certification on November 19, 1996, State v. McCray, 147 N.J. 261 (1996). The trial court denied defendant's first PCR petition without an evidentiary hearing on July 30, 1998. After defendant filed a notice of appeal on March 24, 2004, we affirmed on December 8, 2005. State v. McCray, A-4093-03 (App. Div. Dec. 8, 2005).
Defendant filed this second PCR petition in May 2008. By order entered August 1, 2008, the trial court determined that defendant demonstrated good cause for the appointment of counsel, notwithstanding that this was his second PCR petition.
After a non-testimonial hearing on June 19, 2009, the court issued an oral opinion denying the petition, and entered a final order on July 2, 2009. This appeal followed.
Defendant raises the following point on appeal:
DEFENDANT'S ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO CHARGE THE JURY WITH THE LESSER-INCLUDED OFFENSE OF THEFT FROM THE PERSON.
We affirm on the grounds that the petition is time-barred. As our discussion demonstrates, we also find that defendant's petition lacks substantive merit. A brief review of the facts presented at trial is necessary.
Shawn Standifer, the victim, testified that after entering his apartment building at around 3:30 p.m. on February 27, 1993, he was accosted by four men. Two had been waiting in a parked car as he entered. The other two were already in the building. He just had time to collect his mail. He could only identify defendant among the assailments. He knew defendant to be his wife's cousin. One of the unidentified men grabbed Standifer in a headlock. Another pointed a gun at him, and defendant struck Standifer in the head and hand with a hammer. Defendant told the man with the gun to shoot Standifer, but he did not. Meanwhile, defendant went through Standifer's pockets, removing $165, which included his recently received wages, and his mail and keys. Standifer was ...