On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-12-4452.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
Defendant appeals from the January 13, 2010 order denying his petition for post-conviction relief (PCR) based on numerous claims of ineffective assistance of trial and appellate counsel.
Defendant also asserts a claim that PCR counsel rendered ineffective assistance. We affirm.
Tried to a jury in 2004, defendant was convicted of first- degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a).
He was sentenced to an aggregate term of fifteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA); the judge also imposed a five-year period of parole supervision following release pursuant to N.J.S.A. 2C:43-7.2(c).
Defendant appealed, claiming (1) the verdict was against the weight of the evidence, (2) error in failing to grant a mistrial for prosecutorial misconduct, (3) error in denying his motion for judgment of acquittal, and (4) his sentence was "unjust, inappropriate and manifestly excessive." We affirmed. State v. Smith, No. A-2800-04 (App. Div. March 3, 2006). The Supreme Court denied certification. State v. Smith, 187 N.J. 80 (2006).
In order to place defendant's PCR claims in context we summarize the pertinent trial evidence from our earlier decision.
On August 1, 2002, the victim, Joseph Shenouda, a man of Arabic nationality and only a six month resident of the United States, with a very poor command of the English language, was working at the Steakhouse II Restaurant in Irvington. Just after 10:00 p.m., he stepped outside of the restaurant and while making a telephone call on his cell phone was robbed. He testified that defendant and another man approached him. The other man took his cell phone from him. Defendant put a gun to Shenouda's stomach, placed his hand on his shoulder, told Shenouda to give him his money, and not to move. Fearing for his life, when defendant stuck the gun to his stomach, Shenouda threw his money, which he believed to be approximately $80, on the ground. The man who took the phone alerted defendant that someone was coming toward them. Defendant picked up the money and the two men got into an automobile with two other individuals and left the scene. The man who was approaching was Said Androus, a restaurant delivery man. Although Androus did not observe the handgun pointed at Shenouda's stomach, he did see the men standing near him. After being told by Shenouda what happed to him, Androus summoned a police car that was passing by.
The police then pursued the vehicle, a burgundy Toyota Camry, which the robbers had entered. A police pursuit, with lights and sirens activated, ensued through three municipalities until the vehicle crashed into a fence in front of 13 Halsted Street in East Orange. Shenouda and his cousin, who also worked at the restaurant, followed the police car in Shenouda's cousin's car. During the pursuit one of the occupants of the Camry was leaning out of the vehicle waving a silver handgun in the direction of the police car.
After the suspects' vehicle crashed, four men exited the vehicle and ran toward the fence. Two suspects jumped over the fence and the other two went around it. Irvington Police Officers Young and Wilson searched the backyard of a residence, where they found defendant crouched down under some bushes near the steps of a home. When they apprehended defendant under the bushes, a silver handgun, later described as a starter pistol, was found about a foot from defendant. The gun was later determined by ballistics to be operable. Officer Young identified defendant and the handgun in court.
Shenouda's cell phone was found in the rear seat of the vehicle that defendant and the other suspects fled from. The cell phone contained a pre-recorded list of numbers that Shenouda had programmed into the cell phone and Shenouda identified the cell phone as the cell phone that had been stolen from him. Additionally, defendant had sixty-five dollars in his possession at the time of his arrest.
Shenouda described the defendant as a short man with a light beard, wearing a black shirt. After defendant was arrested, Shenouda, at the scene, made a positive identification of defendant as the person who pointed a gun at him. Shenouda later identified defendant as the gunman in the photograph shown to him by the police. Shenouda also described the co-defendant who he was ...