On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-02-0364.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2012
Before Judges Waugh and St. John.
Defendant Brenston Ayers appeals from an order entered on February 18, 2010, denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm.
On appeal, the record discloses the following facts and procedural history.
In 2002, defendant and co-defendant Emanuel Harrison were arrested in possession of a handgun when they were pulled over in Englewood Cliffs after the potential victim of a home invasion robbery called police. The victim stated that two men matching defendant and Harrison's descriptions were repeatedly circling her house and making pointing gestures toward her from their vehicle. Two other men, subsequently arrested and identified as defendant's co-conspirators, testified at defendant's trial that they recruited defendant to commit an armed robbery. Defendant maintained that he only agreed to participate in burglarizing the home but never agreed to be involved in an armed robbery. He also denied that he possessed the handgun.
After a jury trial, defendant was convicted of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a Taurus nine-millimeter handgun without a permit, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have weapons (handgun), N.J.S.A. 2C:39-7(b). After merging the conviction for possession of a firearm for an unlawful purpose into the conviction for conspiracy to commit armed robbery, the judge imposed a seven-year term of imprisonment with 85% parole ineligibility; a concurrent four-year term of imprisonment for unlawful possession of a handgun; and a consecutive seven-year term of imprisonment with five years of parole ineligibility for certain persons not to have weapons.
Defendant appealed his conviction and, in an unpublished opinion dated February 28, 2007, we affirmed the conviction but remanded for reconsideration of the sentence on the "certain persons" conviction. State v. Ayers, No. A-0389-04 (App. Div. Feb. 28, 2007). The Supreme Court subsequently denied defendant's certification petition. State v. Ayers, 192 N.J. 295 (2007). On remand, the trial judge held a resentencing hearing and issued a written opinion affirming defendant's original sentence. Defendant appealed that sentence, and we affirmed. The Supreme Court denied defendant's petition for certification. State v. Ayers, 200 N.J. 206 (2009).
Defendant subsequently filed a petition for PCR, which was denied. This appeal ensued.
Defendant raises the following arguments for our consideration on appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPREPSENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO NUMEROUS REMARKS MADE BY THE PROSECUTOR DURING HIS SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY IN SEVERAL DIFFERENT RESPECTS.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF HER FAILURE TO OBJECT TO VARIOUS INSTANCES OF IMPROPER CROSS-EXAMINATION OF HER CLIENT BY THE PROSECUTOR AS WELL AS BY CO-COUNSEL.
D. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HER FAILURE TO FILE A TIMELY NOTICE REGARDING THE DEFENSE OF RENUNCIATION, THEREBY PREVENTING THE DEFENSE FROM BEING CHARGED TO THE JURY.
E. TRIAL COUNSEL MISLED THE DEFENDANT INTO PROCEEDING TO TRIAL AS A RESULT OF ERRONEOUSLY ADVISING HIM REGARDING HIS MAXIMUM SENTENCING EXPOSURE IF CONVICTED AT TRIAL.
F. SINCE THE DEFENDANT PRESENTD A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ...