NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1887.
Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Ms. Juliano and Brynn Giannullo, Legal Assistant, on the brief).
Before Judges Simonelli and Koblitz.
Defendant Fatique Snead appeals from the June 3, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on ineffective assistance of counsel. We affirm.
The record reveals the following. A grand jury indicted defendant for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one), and fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3 (count two) (the first indictment). The charges stemmed from an incident on December 5, 2008.
Another grand jury indicted defendant and co-defendants Ashley Chipparullo and Miaja Evans for second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one), and first-degree armed robbery, N.J.S.A. 2C:15-1 (count two) (the second indictment). The charges stemmed from the robbery of a Chinese food delivery driver, J.L., on June 9, 2009. Defendant, then twenty years old, committed this crime the day after he was arraigned on the weapons charges in the first indictment and while on bail.
Defendant and Chipparullo were also indicated under the second indictment for second-degree conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count six). The charges stemmed from the robbery of a Chinese food delivery driver, Q.X.Y., on June 11, 2009, two days after the first robbery.
Defendant pled guilty under the first indictment to second-degree unlawful possession of a weapon (count one), and under the second indictment to two counts of first-degree armed robbery (counts two and four). At the plea hearing, he testified that he demanded J.L.'s money and used his fingers to simulate a gun and put them to J.L.'s head in order to give J.L. the impression he would be shot if he did not comply. As defendant did this, one of his co-defendants took J.L.'s money, car keys, and the food he was delivering. The three co-defendants split the proceeds. Defendant also testified that he demanded Q.X.Y.'s money. When Q.X.Y. refused, he took a brick or blunt object, struck Q.X.Y. in the head and face, and then took his money, cell phone, and the food he was delivering.
Defendant faced a maximum fifty-year term of imprisonment on all charges. The State agreed to recommend a ten-year term on counts two and four of the second indictment subject to 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 a consecutive five-year term on count one of the first indictment with a three-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c. Defendant reserved the right to argue at sentencing for concurrent sentences.
At sentencing, trial counsel argued for concurrent sentences based on defendant's youthful age and hardship to his family. Defendant testified he was under the influence when he committed the crimes. The trial judge reviewed defendant's prior criminal record and found he had five juvenile adjudications, including an adjudication for possession of a weapon, N.J.S.A. 2C:39-5e(2), and a violation of probation; four adult municipal court convictions, including convictions for theft, N.J.S.A. 2C:20-3a, and unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4e; and one indictable conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The judge found and applied aggravating factor 3, "[t]he risk that the defendant will commit another offense, " N.J.S.A. 2C:44-1a(3), based on defendant's prior criminal record and the fact that he committed the June 2009 offenses while on bail; and factor 9, "[t]he need for deterring the defendant and others from violating the law, " N.J.S.A. 2C:44-1a(9). The judge also found and placed great weight on mitigating factor 11, "[t]he ...