On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0654.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
Defendant appeals from the April 27, 2009 order denying his petition for post-conviction relief (PCR). We affirm in part and reverse and remand in part.
Tried to a jury in May 2004, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5(b); third-degree attempted theft, N.J.S.A. 2C:5-1 and 20-3; and fourth-degree possession of a firearm with a defaced serial number, N.J.S.A. 2C:39-3(d).*fn1 He was acquitted of a carjacking charge. In August 2004, defendant was sentenced to an aggregate term of fifteen years imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA); he was required to serve a five-year term of parole supervision upon release and appropriate statutory assessments were imposed.
Defendant appealed; counsel raised three claims of trial error and excessive sentence and, in a pro se supplemental brief, defendant claimed the verdict was against the weight of the evidence, as well as error in the jury charge on first- degree robbery. We affirmed. State v. McRee, No. A-1065-04 (App. Div. July 28, 2006) (slip op. at 16). In that opinion, we summarized the pertinent trial evidence as follows:
On December 28, 2002, at approximately 10:00 p.m., Richard Pitchford and his cousin Adrianne Brown left a family party at their aunt's home in Jersey City. Pitchford planned to give Brown a ride to her home.
They walked to his car which was parked in the street in front of a home a few doors away. Pitchford opened the door for Brown and walked to the driver's side of the car.
According to Pitchford, as he was swinging his leg into the car, he heard someone yell "Yo, give it up." He turned and saw a gun pointed at his head and chest. He grabbed the gun. He and the man holding it struggled in the street. He was punched twice and threw one punch. Pitchford managed to pin his assailant down. At that point, Pitchford was on top. They were face to face. The man was wearing what Pitchford described as a "dark, like a down coat, three-quarters, with a hood." Pitchford gained control of the man's gun.
The assailant yelled at Pitchford and demanded his gun back. Two other men approached, one of them also told Pitchford to give the gun back. Pitchford was not certain whether they were with defendant or not. His assailant then walked across the street and sat down on the steps of a home nearby. Pitchford went back to his aunt's home to make sure someone had called the police. They arrived within three to eight minutes. . . .
According to Brown, as soon as she got in the car and closed the door, she leaned over to unlock the other door for Pitchford. Before he opened the door, she heard a thump and turned to see him and another man struggling for a gun. She saw Pitchford punch the other man a couple of times. The gun was knocked to the street, and Pitchford picked it up. His assailant came back at him to get his gun. Two other men approached. One had a bottle in his hand, which he broke.
Although Brown had called the police from her cell phone and described the assailant as wearing a leather jacket, she was concerned that her cousin would be harmed. She went back to the porch of her aunt's home. She watched from the screen door and then went back outside. The assailant had crossed the street and sat on the steps. He did not get up from the steps and was still there when the police came.
The Supreme Court denied certification. State v. McRee, 189 N.J. 646 (2007).
On April 4, 2007, defendant filed his PCR petition, claiming ineffective assistance of trial and appellate counsel. Counsel was assigned and filed a supplemental brief, raising claims of ineffective assistance of counsel for failing to: (1) object to prejudicial comments by the prosecutor in summation; (2) argue that the jury charge improperly emphasized the State's evidence; (3) interview and subpoena defendant's girlfriend; and (4) "diligently" argue against the application of aggravating factors three and nine at sentencing, N.J.S.A. 2C:44-1(a)(3), (9); counsel also argued that defendant should be re-sentenced pursuant to State v. Natale, 184 N.J. 458 (2005).
At a hearing on October 2, 2008, however, defendant claimed that PCR counsel had merely "plagiarize[d]" the brief previously filed by appellate counsel and was, therefore, "reargu[ing] the same issues that had been adjudicated . . . ." Defendant stated that he wished to have a new attorney appointed to represent him on PCR. The judge thereupon adjourned proceedings to permit defendant to seek new counsel.
On February 8, 2009, newly appointed PCR counsel filed a supplemental brief raising the following claims of ineffective assistance of counsel: (1) failure to demand a probable cause hearing at which the victim could have been cross-examined; (2) failure to investigate alibi and fact witnesses; (3) appellate counsel's failure to supplement the record with the transcripts of defendant's first trial when certification was pending before the Supreme Court; and (4) prior PCR counsel's presentation of a brief that "mirrored" defendant's appellate brief.
As examples of his claim that counsel failed to investigate witnesses, defendant asserted that he was bruised at the time of his arrest because the alleged victim, Pitchford, had been the aggressor and assaulted him, and counsel failed to pursue this. He also alleged that Brown's testimony that she called the police on her cell phone was false as evidenced by a search of the cell phone number she claimed she used, which showed that no such number was registered in her name; defendant submitted documentation to support the latter claim.
In support of defendant's claim of ineffective assistance of trial counsel, PCR counsel included in his appendiX correspondence defendant had sent to his assigned attorney, stating his version of the events on the night in question, drawing a map of the area and describing his injuries; he ...