July 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JERMAINE HARRIS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2012
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-10-2294.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Guadagno.
Defendant Jermaine Harris appeals from a December 3, 2010 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On June 20, 2007, a jury found defendant 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); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count four); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count six). In a second trial before the same jury,  defendant was convicted of second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7(b)(1) (count seven).
At sentencing on August 24, 2007, the court denied the State's motion for an extended term. The court merged counts one, three, four, and six into count two and sentenced defendant to a twenty-year period of incarceration subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for armed robbery. The court imposed a consecutive ten-year prison term with five years of parole ineligibility for possession of a weapon by a convicted person (count seven). Thus, defendant was sentenced to an aggregate term of thirty years in prison with a twenty-two year period of parole ineligibility.
Among other things, defendant alleged on his direct appeal that he did not receive a fair trial because the "repeated references to the presence of a non-testifying eyewitness" at the show-up identification procedure violated State v. Bankston, 63 N.J. 263 (1973); the show-up procedure used by the police "was impermissibly suggestive and created a very substantial likelihood of irreparable misidentification"; defense counsel was ineffective for failing "to request a Wade hearing"; his motion for a mistrial should have been granted because "the prosecutor impliedly labeled [him] a career criminal"; and his "sentence is excessive." In an unpublished opinion, State v. Harris No. A-1652-07 (App. Div. Mar. 23, 2009), we affirmed defendant's convictions and sentence, and the Supreme Court denied his petition for certification, 199 N.J. 516 (2009).
Defendant's pro se petition for PCR was filed on or about March 24, 2010. In a letter brief in support of his petition, defendant alleged his attorney was ineffective for failing to object to comments by the prosecutor in his opening statement, which "implied that [the State] had received information from Blair Williams, a non-testifying co-defendant." Additionally, defendant claimed his attorney was ineffective for failing to request that second-degree robbery be included on the verdict sheet as a lesser-included offense. Assigned counsel also filed a letter brief in support of defendant's application.
Following oral argument on December 3, 2010, the PCR judge, who was also the trial judge at defendant's trial, summarized the facts of the case as follows:
On August 5th, 2005, the victim was working alone at a Citgo Gas Station at about 10:30 p.m. He was robbed by two black males, both approximately six feet tall. The gunman was wearing a white shirt, blue jeans, boots and a black hat with the letter P on it. The gunman had a thick beard and neck length braids. The gunman took cash from the victim. The second man [took] rolled change from the drawers and put them inside a shopping bag that was from DSW. Victim estimated that about $115 to $130 in cash was taken. The men then cut the fax line [and] walked away from the gas station. The whole incident only lasted about three minutes.
About 20 minutes later, about 10:50 p.m., Atlantic City Patrolman Rando observed a red vehicle traveling in the opposite direction from the gas station. He radioed for back-up and followed the car. This was after receiving a description. The car was pulled over to the side. Two passengers exited the vehicle. The defendant in the case, Mr. Harris, exited on the driver's side. An individual named Blair [Williams] exited out of the passenger side. The patrolman approached defendant and Williams [and] spoke to them while awaiting back-up. Within seconds, several other officers arrived and they secured the defendant and Mr. Williams. Patrolman Rando inspected the vehicle with a flashlight and he immediately saw a long barrel handgun underneath the seat cushion on the passenger side. He also found a DSW bag between the two front seats with rolls of coins inside. . . . Officer Henderson observed a black hat with a P and a scarf in the back seat of the vehicle.
The victim and another witness to the alleged incident, a Mr. Ernest Santos, were then driven to Atlantic City for an identification procedure. They did not speak to each other, based on the testimony, while traveling. . . .
While sitting in the back of the patrol car, the victim and the witness both identified defendant and Mr. Williams as the robbers. At the time neither of them had neck length braids.
Defendant testified at his trial and denied participating at all in the incident.
The judge explained he was denying defendant's petition for PCR because defense counsel "raised all appropriate objections that should have been made"; and, because defendant's defense was "I'm not guilty of anything, " counsel made a strategic decision not to include second-degree robbery as a separate interrogatory on the verdict sheet. Thus, the judge concluded that defendant failed to satisfy both prongs of the Strickland/Fritz test.
On appeal from the denial of his petition, defendant presents two arguments. First, defense counsel was ineffective for failing to "clearly delineate the second-degree [robbery] option on the verdict sheet." Second, defendant maintained his attorney was ineffective for failing to object to the prosecutor's opening statement when he implied that co-defendant Blair Williams would testify.
We reject these arguments and affirm the order denying defendant's petition for PCR substantially for the reasons stated by Judge Michael A. Donio on December 3, 2010. We agree that defendant's allegations are insufficient to establish that defense counsel's performance fell below an objective standard of reasonableness as required by the first prong of the Strickland/Fritz test, and he also failed to show "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome'" State v Marshall 148 N.J. 89 157 (quoting Strickland supra 466 U.S. at 694 104 S.Ct. at 2068 2064 80 L.Ed.2d at 698) cert denied 522 U.S 850 118 S.Ct. 140 139 L.Ed.2d 88 (1997) Defendant's arguments do not warrant any additional discussion R 2:11-3(e)(2)