On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-04-0650.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Grall.
Defendant Anthony Dudley appeals from the denial of his
application for post-conviction relief (PCR). On appeal
I. DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
II. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE A CO-DEFENDANT'S TESTIFYING FOR THE STATE IN RESTRAINTS VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
III. THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL'S INEFFECTIVENESS. (Partially Raised Below).
We affirm substantially for the reasons stated in the thorough opinion Judge Kracov delivered on June 30, 2010. The judge presided over defendant's trial and the proceedings on his petition for PCR.
Following a trial of defendant and one of his two co-defendants that commenced on April 29, 2003, the jury found defendant guilty of first-degree armed robbery, N.J.S.A. 2C:15- 1; second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). His co-defendant was acquitted of all charges. The third co-defendant, Manuel Colon, testified for the State.
On August 6, 2003, the judge merged defendant's convictions for conspiracy to commit armed robbery and possession of a weapon with unlawful purpose with his conviction for first- degree robbery and imposed an aggregate fifty-year term of imprisonment with twenty-three years of parole ineligibility, which is the duration of the longest of the concurrent sentences imposed on the remaining counts - an extended term for first- degree robbery. This sentence is consecutive to a fifty-year term previously imposed for unrelated charges. The judgment of conviction was entered on August 7, 2003. Defendant's direct appeal was submitted to a panel of this court on January 10, 2007. In the unpublished opinion, we summarized the facts of the case:
Three men, later identified as Manuel Colon, defendant Anthony Dudley, and Derrick Williams, allegedly robbed a McDonald's Restaurant in Bayonne. Apparently, defendant had recruited Colon to commit the robbery to obtain sufficient money to bail his brother Johnny Dudley, nicknamed 'Supreme,' out of jail. Colon testified that to commit the robbery he carried a chrome BB gun, Dudley had a .25 automatic, and Williams pretended to carry a weapon. ...