On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-04-0563.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Payne and Baxter.
Defendant, Slick Thomas, was convicted by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was also convicted of a violation of N.J.S.A. 2C:39-7b, prohibiting certain persons from having weapons, a second-degree crime. An aggregate sentence of seventeen years was imposed, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant's convictions were affirmed, but his case was remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). State v. Thomas, No. A-0066-04 (App. Div. June 13, 2007). On resentencing, the same sentence was imposed. A petition for certification was denied. State v. Thomas, 193 N.J. 585 (2008).
Thereafter, defendant sought post-conviction relief (PCR), which was denied following an evidentiary hearing. Defendant has appealed, raising the following issues for our consideration:
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY (1) TELLING THE JURY THAT MR. THOMAS WAS A DRUG DEALER AND (2) BY FAILING TO INVESTIGATE AND PRESENT HIS ALIBI DEFENSE. AS SUCH, THE PCR COURT'S DECISION DENYING DEFENDANT'S PETITION MUST BE REVERSED.
THE CLAIMS IN MR. THOMAS'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE v. WEBSTER, 187 N.J. 254 (2006).
At trial, evidence was presented that, on the evening of September 3, 2002, defendant approached Sommer Williams and Marcus Evans in Perth Amboy while Williams and Evans were sitting on the front porch of a friend's house. Defendant, who Williams testified was "going through a little territory phase," stated to Williams: "[Y]ou know, you can't be here, this is my block." After Williams insisted that she could be wherever she chose, defendant left. Soon, however, he returned, accompanied by Hassan Stevenson. The two men dragged Evans to his feet, and defendant directed him to "run his pockets." Stevenson thereupon held a gun to Evans's head, while defendant asked him which way he wanted to do it. Thereafter, Stevenson lowered the gun and shot Evans in the thigh. Defendant and Stevenson then departed in different directions. Upon the arrival of the police, Williams identified defendant, whom she had known since childhood. Williams also identified Stevenson.
During trial, defendant's counsel argued that what occurred was not a real robbery, but rather, a dispute between dealers over drug territory, and that defendant did not know that Stevenson would be present or that Evans would be shot. On direct appeal, defendant argued: "Defense counsel's effort to portray the defendant as a drug dealer in order to secure a not guilty verdict on the charge of armed robbery on Count One constitutes ineffective assistance of counsel." We declined to address the issue on direct appeal and invited a PCR motion. Thomas, supra, slip op. at 10-11.
In his PCR petition, defendant claimed that his trial counsel was ineffective in pursuing such a "high-risk" drug-dealer strategy, and he claimed additionally that counsel was ineffective in failing to raise an alibi defense. As to the alibi, defendant submitted a certification from his then-girlfriend, Aurora Chavies, that between 9:30 and 10:30 p.m. on September 3, 2002, she and defendant took a cab to a motel, where ...