June 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALIMEAN TURAY A/K/A ALIMAN TURAY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 05-05-0720 and 05-06-0877.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2012
Before Judges Fisher and Grall.
Defendant Alimean Turay pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, committed on November 19, 2004, and to third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7, committed on February 18, 2005. The crimes were charged in two separate multi-count indictments. Defendant was subject to a mandatory extended term with a mandatory period of parole ineligibility for the drug offense, N.J.S.A. 2C:43-6f, because of a prior conviction. Shortly before entering these guilty pleas, defendant had been convicted of a robbery he committed on November 9, 2004.
The State offered a plea bargain on the multi-count indictments at issue here. In return for defendant pleading guilty to the robbery and drug offenses, the State agreed to dismiss the remaining counts of the indictments. The State agreed to recommend a fifteen-year term of imprisonment for the robbery charge, subject to the terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent seven-year extended term, forty-two months to be served without parole, for the drug offense. The agreement also stipulated that the State would recommend these concurrent sentences run concurrently with the sentence for the November 9, 2004 robbery. Defendant accepted the deal, and the judge sentenced defendant in conformity with this agreement.
On defendant's direct appeal he challenged only his sentence, and we affirmed after hearing oral argument in accordance with Rule 2:9-11. State v. Turay, No. A-1463-08 (App. Div. Mar. 31, 2009). The Supreme Court denied his petition for certification. State v. Turay, 201 N.J. 146 (2009).
The facts of the crimes at issue were provided by defendant at the time of his plea. He admitted that on November 19, 2004, he threatened Axel Rodriguez with a gun and then stole from him. Mr. Rodriguez had identified defendant as the robber before defendant was indicted for the crime. Defendant also acknowledged that on February 18, 2005, he possessed a controlled dangerous substance within a 1000 feet of a school that he intended to distribute. In addition, defendant told the judge that he was pleading guilty because he was guilty of these crimes.
In support of his petition for post-conviction relief, defendant asserted a third-party guilt defense based on information that five days after Mr. Rodriguez was robbed, the police arrested, Mr. Atkins, who resembled defendant, for a drug offense committed in the same area as the robbery. Defendant further alleged that the prosecution had not informed the defense about the Atkins arrest or advised that the police had not included Atkins in the identification procedures that resulted in Mr. Rodriguez identifying him. According to defendant, he learned about Atkins' arrest "verbally" while he was in jail but did not receive a copy of "the incident report relating to Mr. Atkins" until after he had "lost the first trial and pled guilty to [the Rodriguez] robbery."
Defendant sought relief from this robbery conviction on the ground that the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Defendant also argued that the attorney who represented him on his guilty plea provided ineffective assistance. First, he contended that he told his lawyer about Mr. Atkins but the lawyer did not take appropriate action. Second, defendant asserted that his attorney also failed to conduct an adequate investigation - specifically, that the lawyer did not follow-up when defendant told him that his girlfriend at the time, Ms. Dorese, would have provided an alibi. Defendant did not include in this petition a certification or affidavit from Ms. Dorese confirming her willingness or ability to provide an alibi.
The judge who heard argument on defendant's petition denied it. He found that defendant's bald assertions were insufficient to establish a prima facie case of ineffective assistance of counsel, State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), and we affirm his determination on that point substantially for the reasons the judge stated in his oral opinion of September 23, 2010.
The judge did not address defendant's claims about the Atkins arrest, but they lack sufficient merit to warrant discussion beyond the comments that follow. R. 2:11-3(e)(2). Defendant raised another claim based on Atkins' arrest in seeking relief from his conviction for the November 9, 2004 robbery. Both the trial court and this court rejected his claim that his attorney was ineffective because he did not pursue a claim of third-party guilt. The panel relied on the reasons stated by Judge Kenny who heard that petition. State v. Turay, No. A-2811-09 (App. Div. Apr. 12, 2011), certif. denied, 208 N.J. 368 (2011).
In addressing the claim, Judge Kenny made pertinent factual findings - specifically, that defendant was bigger than Mr. Atkins, weighed thirty-to-forty pounds more than Atkins, and had a different shaped face. Moreover, he noted the victim of the November 9 robbery knew defendant prior to identifying him as the robber. He concluded that defendant was not prejudiced.
Considering Judge Kenny's findings highlighting the significant differences in defendant's and Atkins' physical appearance and the absence of any evidence that Atkins was even in the area on the date of the Rodriguez robbery, we cannot conclude that the information about Atkins' arrest was "exculpatory" within the meaning of Brady or that defense counsel's performance was deficient because he did not pursue the matter.
Evidence is exculpatory within the meaning of Brady if it is "favorable to the defendant." State v. Reddish, 181 N.J. 553, 639-40 (2004). Relief based on the State's failure to provide exculpatory evidence is not available unless the defendant establishes that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985); see also Kyles v. Whitley, 514 U.S. 419, 433-38, 115 S. Ct. 1555, 1565-68, 131 L. Ed. 2d 490, 505-08 (1995). The reasonable-probability standard "is essentially the same standard that [courts] have traditionally applied in determining whether a defense attorney's errors are so egregious as to amount to a Sixth Amendment violation." State v. Parsons, 341 N.J. Super. 448, 455 (App. Div. 2001); see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Applying the foregoing standards, there is no reasonable probability that defendant would have declined the very favorable plea agreement if the State had disclosed or defense counsel had pursed the information about Atkins' arrest. In hindsight, defendant may speculate that he would have made that choice in the hope of raising a reasonable doubt about the accuracy of Rodriguez's identification. Nevertheless, given the differences in appearance and the beneficial plea agreement, we cannot conclude that there is a "reasonable probability" that he would have taken that risk.
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