On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2190.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Fasciale.
Defendant appeals from a January 6, 2011 order denying his petition for post-conviction relief (PCR). Defendant pled guilty to second-degree robbery, N.J.S.A. 2C:15-1, and contends primarily that his plea counsel was ineffective. We disagree and affirm.
In August 2008, defendant and his friend were in the Trump Plaza Hotel and Casino located in Atlantic City and observed the victim playing at a craps table. A casino surveillance camera showed defendant and his friend surrounding the victim at the craps table and then following the victim to a restaurant in the casino. They approached the victim, who had been standing in line with his family waiting to be seated, and they pushed the victim as defendant reached into his pocket. The victim resisted, grabbed defendant's hand, and pulled it out of his pocket as money fell to the floor. The police arrested defendant at the scene.
In March 2009, defendant entered his guilty plea and testified that he followed the victim to the restaurant, grabbed him, and used force to steal money from his pocket. Defendant testified that he observed money come out of the victim's pocket "[a]s we fell to the floor." At the plea hearing, defendant admitted that he and his friend essentially wrestled with the victim to steal his money.
In May, 2009, the sentencing judge followed the plea agreement and imposed a five-year prison term with eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to a separate conviction for third-degree theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:20-2b(2)(d). Defendant did not file a direct appeal.
In March 2010, defendant filed his pro se petition for PCR. Retained counsel filed a brief*fn1 and amplified the arguments contained in the petition. Thereafter, defendant filed a pro se brief.*fn2 In general, defendant challenged the factual basis of his plea and contended that his plea counsel was ineffective by failing to negotiate a better agreement with the State and file a motion to dismiss the indictment.
In January 2011, Judge Bernard E. DeLury, Jr., conducted oral argument, denied the petition, and issued a twelve-page oral opinion. The PCR judge allowed defendant to testify during oral argument and determined that defendant failed to establish a prima facie case of ineffective assistance of counsel. This appeal followed.
On appeal, defendant raises the following points:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST BEING INDICTED BY A GRAND JURY THAT WAS NOT FULLY INSTRUCTED ON THE LAW BY THE PROSECUTOR, AND THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE ...