On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1371.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Lihotz and Baxter.
Defendant Tarique Scott appeals a March 11, 2009 Law Division order denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm.
During defendant's jury trial in May 2007, the State presented proofs establishing that defendant, along with co-defendant Raymond McKnight, threatened Crystal Newsome and her companion Florin Savu, telling the couple that if they gave the men their money, they would not be shot. During the incident, defendant attacked Savu with a metal broomstick. The jury convicted defendant of second-degree robbery, third-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon and third-degree hindering apprehension. On direct appeal, defendant raised the following claims:
I. THE TRIAL COURT'S JURY INSTRUCTIONS DEPRIVED [DEFENDANT] OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below).
A. The Trial Court Opened the Door to a Conviction Based on Acts Not Charged in the Indictment.
B. The Trial Court Allowed for a Non-Unanimous Verdict by Failing to Charge on Multiple Victims.
C. The Trial Court Bolstered the State's Case by Improperly Charging the Jury that Mr. Savu Identified [Defendant] in Court.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
III. THE PCR COURT ERRED BY PROCEEDING WITH A RULING ON [DEFENDANT'S] PCR PETITION WHEN HIS DIRECT APPEAL WAS PENDING SO THE COURT SHOULD ACCEPT THIS BRIEF AS A DIRECT APPEAL. (Not Raised Below).
We rejected the claims defendant raised in Points I and II, but agreed with his contention in Point III that his claims of ineffective assistance of counsel should be deferred for post-conviction review. State v. Elliot, No. A-2310-07 (App. Div. April 6, 2010) (slip op. at 3, 26). The Supreme Court denied certification. State v. Elliot, 203 N.J. 439 (2010).
Defendant then filed a timely PCR petition in which he argued that trial counsel rendered ineffective assistance by failing to adequately cross-examine the State's witnesses, by failing to conduct a sufficient pretrial investigation, by failing to call McKnight as a defense witness and by failing to file a pretrial motion to dismiss the indictment based on the prosecutor's breach of his duty to present exculpatory evidence to the grand jury. Finally, defendant argued that he received an illegal sentence. Finding that defendant had failed to establish a prima facie case of ineffective assistance ...