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State of New Jersey v. Jerome Harbour

July 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEROME HARBOUR, A/K/A LARMAR HARBOUR, DEFENDANT-APPELLANT.



Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 29, 2012

Before Judges Cuff and St. John.

Defendant Jerome Harbour appeals from the July 17, 2009 order denying his petition for post-conviction relief (PCR). He argues trial counsel provided ineffective assistance, including pressuring him into pleading guilty, failing to move for dismissal of the robbery indictment, and not sufficiently reviewing discovery with him. Further, defendant contends he should have been permitted to withdraw his guilty plea, and been afforded an evidentiary hearing in relation to his PCR. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On February 7, 2005, a grand jury returned Indictment No. 05-02-0327, charging defendant with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); second-degree attempted robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (Count Two); and first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Three). On February, 17, 2005, a grand jury returned Indictment No. 05-02-0419, charging defendant with possession of cocaine, N.J.S.A. 2C:35-10a(1). On March 24, 2005, a grand jury returned Indictment No. 05-03-0744, charging defendant with possession of heroin, N.J.S.A. 2C:35-10a(1).

After plea negotiations, defendant pled guilty to Count Three, first-degree armed robbery, of Indictment No. 05-02-0327, and to the charges in the other two indictments. The State agreed to dismiss the remaining counts and recommended a sentence on the robbery charge of twelve years 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, and to concurrent sentences of four years flat on each of the narcotics charges.

On May 5, 2005, defendant appeared before Judge Anthony J. Mellaci, Jr., completed the plea forms, expressed his understanding of the plea agreement, and waived his right to trial. During the plea hearing, defendant affirmed he had not been threatened and was pleading guilty of his own free will.

He also averred that he had reviewed the charges and plea forms with his attorney, had all his questions answered to his satisfaction, and understood the plea agreement and the charges. The judge reviewed the ramifications of the plea agreement with defendant and recited the possible fines and both the bargained-for-sentence and the mandatory maximum he could impose if defendant accepted the plea agreement. Defendant confirmed he understood, and accepted the consequences of his guilty plea.

In establishing the factual basis for his guilty plea, defendant admitted he acted as an accomplice in the armed robbery, and that the narcotics belonged to him and were in his possession.

Prior to sentencing on June 15, 2005, defendant filed a pro se motion to withdraw his guilty plea to the robbery charge. He alleged counsel had not properly explained to him the consequences of his plea.

At defendant's sentencing on August 19, 2005, his counsel indicated he had reviewed defendant's pro se motion with him and that defendant had decided to withdraw the motion. The judge stated that he had reviewed the tape of the plea hearing from May 6, 2005, and said it was "clear that [defendant] understood what was going on at the time," and understood "the ramifications of the plea." Defendant confirmed he wanted to withdraw his motion and go forward, stating, "Yeah, [my lawyer] did a good job." The judge offered to play the tape of the plea hearing for defendant but he declined. Defendant affirmed he was not being forced or threatened to withdraw his motion and was doing so of his own free will. The court proceeded to then sentence defendant to the bargained for twelve years on the robbery charge, subject to the provisions of NERA, and to concurrent sentences of four years flat on each of the narcotics charges.

Defendant did not appeal, instead, on February 6, 2008, defendant filed a petition for PCR in which he asserted he was "misrepresented" by counsel. Defendant argued, among other things, he was denied effective assistance of counsel; he should have been permitted to withdraw his guilty plea; and an evidentiary hearing with regard to his PCR is required.

The PCR judge denied defendant's petition and this ...


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