NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-09-3524.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Haas.
Defendant Andre Williams appeals from a July 21, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Following a jury trial, defendant was found guilty of 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 robbery, N.J.S.A. 2C:15-1 (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); second-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count five); and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count six).
Following merger of counts one and three with count four, defendant was sentenced to an extended term of life in prison, with thirty-five years of parole ineligibility. On count five, the judge imposed a concurrent term of thirty years in prison, subject to eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count six, defendant was sentenced to a concurrent term of eighteen months. The appropriate assessments and penalties were imposed.
On direct appeal, we affirmed the convictions, but held that the aggravated manslaughter conviction (count five) should also have been merged with the felony murder conviction (count four). State v. Williams, No. A-2331-03 (App. Div. February 21, 2006) (Slip op. at 22-23). We reversed and remanded for resentencing. Id. at 23. The Supreme Court denied certification. 187 N.J. 80 (2006).
The facts giving rise to defendant's convictions are set forth in our unpublished opinion. Williams, supra, (slip op. at 2-5). On June 23, 2001, defendant and his friend robbed an elderly woman between 6:45 a.m. and 7:30 a.m. Id. at 2-3. Defendant drove up to the curb where the victim was walking, exited the car, and took her purse, knocking her to the ground. Id. at 3. He ran back to the car, sat behind the wheel, and started to drive away. Ibid. From a distance, an armed security guard, Dwayne Santos, observed the incident. Ibid. When defendant saw Santos, he put the car in reverse, ran over the victim, and crushed her to death. Id. at 3-4. Defendant confessed to the robbery, but denied knowing that he struck the victim with the car. Id. at 4.
Defendant filed a petition for PCR. In his petition, defendant argued that his counsel was ineffective because he: (1) had conflicts with counsel about how to try the case that made it difficult to communicate; (2) his counsel refused to call defendant's girlfriend, Lakiesha Morgan, as an alibi witness; (3) his counsel fail to request a Wade hearing; and (4) his counsel failed to adequately cross-examine Santos. The PCR judge rejected all of defendant's contentions without conducting an evidentiary hearing.
Defendant appealed this decision and we reversed and remanded for an evidentiary hearing limited to the issue of whether defense counsel was ineffective because he did not call Morgan as an alibi witness. State v. Williams, A-0052-08 (App. Div. August 2, 2010) (Slip op. at 12). We found defendant's other arguments lacked merit. Id. at 8, 12-13.
Defendant asserted he told his attorney, Jerry Soffer, Esq., that Morgan would provide an alibi for him if she were called to testify. Id. at 9. On August 20, 2002, Soffer sent a letter to the assistant prosecutor notifying him about Morgan. Id. at 10. The letter stated:
On June 24, 2002, my investigator, Mike Petrillo, interviewed Ms. Lakiesha Morgan[.] The substance of the interview was as follows:
Ms. Morgan stated that on the night of June 22, 2001, she and the defendant, Andre Williams, were together all night, and were physically intimate. They were together throughout the next morning (June 23, 2001) and were physically intimate again that morning.
Please be advised that for several reasons (only some of which are obvious to you) it is not my intention to call her as a witness. This lack of intention on my part may not withstand constitutional scrutiny. It therefore seems prudent to pass this information on to you so that, in the event that foolish impulses ...