On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-02-00158.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012
Before Judges Carchman and Fisher.
Following a jury trial in 2002, defendant Carlos Feliciano was convicted of first-degree robbery, N.J.S.A. 2C:15-1; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. A second trial resulted in a conviction for fourth-degree certain persons not to have a weapon. N.J.S.A. 2C:39-7a. Defendant was sentenced on September 27, 2002, to an aggregate term of seventeen years of imprisonment with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's appeal of his conviction, and the Supreme Court denied certification. State v. Feliciano, 185 N.J. 38 (2005).
In November 2008, six years after his conviction, defendant filed a petition for post-conviction relief (PCR). In an extensive written opinion, Judge Mega, in the Law Division, denied the PCR. Defendant appeals, and we affirm.
The facts adduced at trial are not complex. On October 14, 2000, at approximately 3:40 a.m., Juan Negron was standing on Third Street in Elizabeth, New Jersey, talking to his girlfriend on a payphone near the area where he had parked his car. Three men approached him and asked if he knew "where they were selling marijuana." When he told them he did not know, they asked him if he had any money, and then they jumped on him and grabbed his left arm. Negron felt a knife on his neck. He told the men that he only had seven dollars and that he would give them his money. The men pulled him around the corner and went through all of his pockets. They tried to take his boots off, but Negron pushed the knife away from him and ran. One of the men then grabbed Negron's wallet, which was on a chain. The three men then ran to a small truck. There was a driver in the truck. As the truck drove off, Negron observed and memorized the license plate number and wrote it down on his hand.
Ten minutes later, Negron started to drive home. As he drove home, he saw the same truck, with the same license plate, with four people inside. He yelled to the men in the truck that he had written down their license plate number. The truck sped off and turned the wrong way onto a one-way street.
Officer John Cockinos of the Elizabeth Police Department was on duty that night and saw the truck drive down the one-way street the wrong way. When he and his partner stopped the truck, Negron ran up to the officers and informed them that the men had robbed him. Negron told the police officers that he had been attacked with a knife and provided a description of the weapon. The officers asked Negron what was in his wallet, and he told them that he had a driver's license, a B.J.'s shopping card and a Social Security card. The officers searched inside the truck and found a knife, Negron's driver's license and his B.J.'s shopping card. The officers removed the men from the truck and asked Negron if he could identify them. At trial, Negron testified that he identified the knife, the identification cards and three of the men, including defendant as the man holding the knife. According to Cockinos, Negron was only able to positively identify defendant, but not the co-defendants. After defendant was taken out of the truck, one of the officers observed that his fist was clenched. The officer ordered defendant to open his hand, which contained one five-dollar bill and two one-dollar bills.
When Negron left the officers, he searched for his wallet by guessing where the truck had traveled between the site of the robbery and the one-way street. He recovered the wallet in the street about five blocks away from the location of the robbery.
At trial, neither Negron nor Cockinos could identify the co-defendants. However, Cockinos again confirmed that Negron had identified defendant at the scene.
In his direct appeal, defendant raised the following issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. MOREOVER, THE VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. (PARTIALLY RAISED BELOW).
THE TRIAL COURT MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT ...