On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-07-1546.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Simonelli.
Following a jury trial, defendant was convicted of first- degree robbery, N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1b; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4e; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. The charges stem from defendant's involvement in the robbery of a jewelry store using a cigarette lighter that looked like a gun and the confinement of one of the victims during the robbery.
The trial judge sentenced defendant to an aggregate fifty- year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, and we affirmed. State v. Johnson, No. A-4077-03 (App. Div. July 27, 2005) (slip op. at 8). The Supreme Court granted certification and summarily remanded the matter to the trial court for re- sentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). State v. Johnson, 188 N.J. 262 (2006). On remand, the trial judge imposed the same sentence.
Defendant thereafter timely filed a petition for post- conviction relief (PCR) arguing that (1) the trial judge erred in his response to a jury question regarding unanimity to convict, and trial counsel was ineffective for failing to object thereto; and (2) the repeated referral to the cigarette lighter as a gun rather than an imitation handgun prejudiced defendant, and trial counsel was ineffective for failing to object thereto and compounded the error by referring to the cigarette lighter as a gun, as well. Judge Sarkisian denied defendant's petition in a written opinion rendered on December 1, 2008.
Subsequently, we granted defendant's motion for a limited remand to allow defendant to file a motion to supplement the record of his petition. Defendant's second PCR counsel then filed an amended PCR petition and brief incorporating the contentions raised in defendant's first PCR petition. Counsel also contended the petition was not procedurally barred and defendant received the ineffective assistance of trial and first PCR counsel for the same reasons expressed in Point IV(A) through (G) below. Judge Isabella denied the petition for the reasons expressed in a written opinion rendered on September 15, 2010. This appeal followed.
In this appeal, defendant raises the following contentions:
POINT I - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT MIS-APPLIED THE PROCEDURAL BAR OF RULE 3:22-4
POINT II -THE COURT ERRED IN DENYING POST- CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S AND THE STATE'S WITNESSES MISCHARACTERIZATIONS OF THE IMITATION WEAPON BEING A REAL HANDGUN; TRIAL COUNSEL'S PARTICIPATION IN THIS MISREPRESENTATION[;] TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTION ON COUNT THREE[;] AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S COERCIVE RESPONSE TO THE JURY'S QUESTION SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL
POINT III-THE COURT'S RULING DENYING POST- CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
POINT IV-DEFENDANT REASSERTS ...