NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-02-0330.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Koblitz.
On October 15, 2008, a Howell homeowner reported to police that someone had broken into his home, resulting in a physical altercation that left the victim bleeding from an area near one ear, from various scratches and from a bite mark on his hand. The victim explained to police that defendant had placed him in a headlock and body slammed him to the ground and also, during this melee, that defendant grabbed an end table with which he unsuccessfully attempted to strike the victim.
Defendant was later arrested and charged with: second-degree burglary, N.J.S.A. 2C:18-2; first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). By agreement, defendant entered a plea of guilty to first-degree armed robbery and, in accordance with the prosecution's recommendation, was sentenced to a twelve-year prison term subject to an eighty-five percent period of parole ineligibility; the other charges were dismissed.
Defendant did not file a direct appeal. On August 10, 2011, defendant filed a post-conviction relief (PCR) petition, arguing:
I. COUNSEL FAILED TO PROPERLY PREPARE ON PETITIONER'S BEHALF BY NEGLECTING TO FILE A MOTION DISMISSING THE INDICTMENT PRIOR TO ADVISING PETITIONER AS TO HIS PLEA OPTIONS BASED UPON THE INCONSISTENCIES WITH RESPECT TO "THE DEADLY WEAPON."
II. COUNSEL FAILED TO PROPERLY PREPARE ON PETITIONER'S BEHALF BY NEGLECTING TO INVESTIGATE WITNESSES PRIOR TO ADVISING PETITIONER AS TO HIS PLEA OPTIONS.
III. COUNSEL FAILED TO RECOGNIZE AND ARGUE THAT THE INJURIES SUSTAINED BY THE VICTIM DO NOT SUPPORT A FINDING OF A FIRST DEGREE CRIME AS THE ASSAILANT WAS NOT ARMED WITH A DEADLY WEAPON THAT WAS INTENDED TO INFLICT SERIOUS BODILY OR LIFE THREATENING INJURY.
IV. COUNSEL FAILED TO PROPERLY PREPARE ON PETITIONER'S BEHALF BY NEGLECTING TO FILE A SUPPRESSION MOTION OF THE STATEMENT OBTAINED BY POLICE WITH ...