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State of New Jersey v. Marvin Canady

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 14, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARVIN CANADY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2190.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 6, 2012

Before Judges Ashrafi and Hayden.

Defendant Marvin Canady appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

Defendant pleaded guilty on March 16, 2009, to charges from two indictments. Indictment No. 08-09-2190E charged defendant and another person, Kyle Kittrell, with second-degree robbery, N.J.S.A. 2C:15-1, and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2. The charges arose from an incident at the Trump Plaza Hotel and Casino in Atlantic City on August 9, 2008, which was captured in part by surveillance recording equipment. Defendant and Kittrell stood at a craps table near a casino patron, S.W., and then followed him to a restaurant. Although the surveillance recording did not show what occurred at the restaurant, S.W. told casino security and the police that the two men pushed him several times and attempted to steal money from his pocket.

In providing a factual basis for his plea of guilty to the robbery charge, defendant testified under oath as follows:

THE COURT: Now, I understand that you were at a local casino, is that correct? DEFENDANT: Yes, sir.

THE COURT: And you were with Mr. [Kittrell]?

DEFENDANT: Yes, sir.

THE COURT: And I understand that you observed [S.W.] coming off the casino floor, is that right?

DEFENDANT: Yes.

THE COURT: And he was on his way to a restaurant?

DEFENDANT: Yes.

THE COURT: . . . Is it true that you had observed Mr. [W.] in possession of some money coming off the casino floor? DEFENDANT: Yes, sir.

THE COURT: And did you then do something to take that money from Mr. [W.]? DEFENDANT: Yes.

THE COURT: Tell me what happened, sir. DEFENDANT: Mr. [W.] standing in - We seen Mr. [W.] at the crap table and we followed him to the restaurant and, therefore, I - I bumped into him while Kyle [Kittrell] took the money out of his pocket.

THE COURT: Okay. So you - you bumped into him or banged into him using some force . . . .

DEFENDANT: Yes, sir.

THE COURT: . . . threw him off his balance it sounds like, and Mr. [Kittrell] was with you?

DEFENDANT: Yes.

THE COURT: And then the two of you went ahead and ran his pockets as it were? DEFENDANT: Yes, sir.

THE COURT: Did you actually get any money?

DEFENDANT: No, sir.

THE COURT: I had heard earlier at another case that when Mr. [W.] went to the floor money that came out of his pockets might have fallen on the floor, a couple hundred dollars, is that right?

DEFENDANT: Yes.

THE COURT: And then you were apprehended pretty quickly thereafter?

DEFENDANT: Yes.

Indictment No. 08-03-0791C charged defendant and Kittrell with third-degree theft from a person, N.J.S.A. 2C:20-3; 2C:20-2b(2)(d), committed at the Trump Plaza Hotel and Casino in Atlantic City on June 11, 2007. At his March 16, 2009 plea hearing, defendant testified to the following factual basis for that crime:

THE COURT: Okay. There's also alleged that earlier, about a year earlier, I think, on the 11th of June, 2007, you were again in Atlantic City in the company of Mr. [Kittrell]. In this indictment [he is] known as Mr. Kyle Jones. Is that the same person?

DEFENDANT: Yes, sir.

THE COURT: Okay. And that the two of you at the Trump Plaza did unlawfully take certain property belonging to N.S., is that right?

DEFENDANT: Yes, sir.

THE COURT: Now I understand N.S. was a woman, is that correct?

DEFENDANT: Yes, sir.

THE COURT: All right. And it's alleged that you took from her person a change purse containing coins or money and credit cards, is that right?

DEFENDANT: Yes, sir.

THE COURT: Is your purpose in taking it, was that to steal it?

DEFENDANT: Your Honor, actually I - I didn't take it. I was the blocker. I stood behind them.

THE COURT: All right. DEFENDANT: Yes.

THE COURT: So the two of you were working together again?

DEFENDANT: Yes.

THE COURT: And she had the purse probably near a slot machine, is that right? DEFENDANT: Yes, I imagine.

THE COURT: Okay. So you're acting as a blocker, a lookout, and otherwise, assisting while Mr. [Kittrell] then grabbed the purse from her?

DEFENDANT: Yes.

THE COURT: You agree and admit that under the circumstances your behavior was unlawful?

DEFENDANT: Yes, sir.

THE COURT: You agree and admit that it was taken from her person, not a robbery, but a theft?

DEFENDANT: Yes, sir.

After confirming directly with defendant that he believed he was guilty of the charges and did not believe he had any defenses, the court accepted the guilty pleas.

On May 1, 2009, the court sentenced defendant in accordance with his plea agreement with the State. On the robbery charge, he was sentenced to five years imprisonment with eighty-five percent of the term to be served before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, and three years of parole supervision after completion of his prison sentence. Defendant was also sentenced to a concurrent term of four years imprisonment on the theft charge of the second indictment. Defendant did not appeal his convictions or sentence.

In March 2010, defendant filed a pro se PCR petition alleging ineffective assistance of counsel. As subsequently supplemented by an amended PCR petition filed on his behalf by appointed counsel, defendant challenged his conviction on the second-degree robbery charge on the ground that there was insufficient evidence of force used during the attempted theft from S.W. He alleged that his attorney had been ineffective for failing to obtain a downgrading of the charge to third-degree theft from a person. Briefs were filed by both sides and the PCR petition was scheduled for oral argument on January 6, 2011.

Defendant was not transported from prison to the courtroom to hear the oral argument in person, but he was provided a video-conferencing connection to the proceedings in court. The court heard the arguments of the attorneys and then placed an oral decision on the record denying the PCR petition.

Defendant now appeals, arguing that:

POINT I

THE PCR COURT ABUSED ITS DISCRETION BY FAILING TO BRING DEFENDANT TO COURT FOR THE MOTION AND THEREBY DENIED HIM THE RIGHT TO CONSULT WITH COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL.

POINT II

THE PCR COURT'S DENIAL OF DEFENDANT'S CLAIM THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY VIRTUE OF COUNSEL'S FAILURE TO MOVE TO DISMISS THE INDICTMENT WAS ERROR AND VIOLATED DEFENDANT'S FEDERAL AND STATE RIGHTS TO DUE PROCESS.

Defendant's claims and arguments do not overcome the presumption that he received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights. Loftin, supra, 191 N.J. at 198. His PCR allegations did not meet the two-pronged Strickland test for ineffective assistance of counsel: First, that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial . . . ." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see State v. Fritz, 105 N.J. 42, 52 (1987). For the second part of this test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We find no error in the conclusions of the trial judge that defendant's allegations of deficient performance were not borne out by the record of his guilty plea and the subsequent submissions on the PCR petition.

First, we note that defendant's PCR petition and appeal do not address his conviction on the third-degree theft charge contained in Indictment No. 08-03-0791C. Defendant only seeks to vacate his guilty plea and conviction on the robbery charge of Indictment No. 08-09-2190E.

Defendant contends that his due process rights were violated because the court conducted the PCR hearing in his absence from the courtroom. He also argues that insufficient evidence was presented to the grand jury of the required element of force for a charge of robbery, and that his attorney provided ineffective assistance by failing to move for dismissal of the indictment.

With regard to defendant's participation by video conferencing rather than personal appearance in the courtroom, Rule 3:16 addresses the right of a defendant to be present at proceedings in the courtroom. In relevant part, the rule states that "defendant's presence is not required . . . except as provided in R. 3:22-10, at a hearing on a petition for post conviction relief." Rule 3:22-10(a), which applies specifically to PCR hearings, states in relevant part: "A defendant in custody may be present in court in the court's discretion. The defendant shall be entitled to be present when oral testimony is adduced."

Here, no oral testimony was taken. The court determined that an evidentiary hearing was not required to decide the issues raised in defendant's petition. Defendant contends that the court had pre-judged the matter before hearing oral argument, but it is appropriate for the court to review the written submissions and to consider oral argument of counsel before deciding whether an evidentiary hearing is needed to resolve the issues raised by the PCR petition. See State v. Mayron, 344 N.J. Super. 382, 385 (App. Div. 2001).

An evidentiary hearing may be required where matters beyond the record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). On the other hand, a PCR petition may be decided on the papers and arguments of counsel "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Whether an evidentiary hearing is necessary is left to the court's sound discretion. Id. at 157-58.

In his PCR petition, defendant challenged the sufficiency of the presentation before the grand jury. The court had the record of those proceedings and could determine whether defendant's contentions could meet both parts of the Strickland test in establishing ineffective assistance of counsel. We discern no abuse of discretion in the court's deciding the matter without an evidentiary hearing and, thus, determining not to transport defendant personally to the courtroom for the oral arguments of counsel. See State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

On the merits of defendant's claim, we find no reasonable probability that a motion to dismiss the robbery charge would have succeeded. An indictment should be dismissed only on the clearest and plainest ground, where it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996); State v. Engel, 249 N.J. Super. 336, 359-60 (App. Div.), certif. denied, 130 N.J. 392 (1991). Incomplete or imprecise legal instructions to the grand jury generally will not warrant dismissal of an indictment. State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd, 141 N.J. 42 (1995), cert. denied sub nom. Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996); State v. Laws, 262 N.J. Super. 551, 562 (App. Div.), certif. denied, 134 N.J. 475 (1993).

In this case, the State had sufficient evidence of force used by defendant and Kittrell in the commission of the attempted theft to support the robbery charge. As quoted previously from defendant's plea allocution, he admitted that he and Kittrell engaged in a concerted effort to remove money from S.W.'s person after defendant used force to "bump" S.W. off balance. Furthermore, the grand jury heard evidence of the victim's statement that defendant and Kittrell pushed him at least three times in their attempt to remove money from his pocket. The bumping and pushing were sufficient use of force to establish probable cause for the charge of second-degree robbery pursuant to N.J.S.A. 2C:15-1a(1). See State v. Williams, 289 N.J. Super. 611, 617 (App. Div.), certif. denied, 145 N.J. 375 (1996); see also State v. Mirault, 92 N.J. 492, 496 n.3 (1983) (robbery statute applicable to purse snatching). A motion to dismiss the indictment would have been properly denied.

Defendant's PCR petition did not establish a prima facie showing of "a reasonable probability that . . . the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Affirmed.

20120814

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