NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-09-2999.
Eustace Cromer, appellant pro se.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez and Carroll.
Defendant Eustace Cromer appeals from an August 7, 2012 Law Division order denying his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that following a February 1999 jury trial, defendant was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; third-degree aggravated assault, N.J.S.A. 2C:12-1(b); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The State successfully moved for an extended term sentence, and on March 12, 1999, Judge Peter J. Vazquez imposed an aggregate sentence of fifty-five years imprisonment with a twenty-year period of parole ineligibility.
Defendant's conviction arises from a shooting on the Garden State Parkway on October 17, 1995. The victim was Bryant Jackson, who was shot while driving on the Parkway at approximately 1:40 a.m. Defendant's vehicle, with its headlights off, had pursued and overtaken Jackson's vehicle. A passenger in Jackson's vehicle, Deirdre Mullen, identified defendant by his nickname as the person who allegedly fired several shots at Jackson. Mullen did not testify at trial. Jackson and another passenger who knew defendant, Checora Washington, did testify, but repudiated their similar prior identifications of defendant. However, their identifications were admitted as prior inconsistent statements after a Gross hearing. See State v. Gross, 121 N.J. 1 (1990).
Defendant appealed the conviction and sentence. Appellate counsel argued that the identification evidence was improperly admitted, and was insufficient to support a conviction; that the jury charge on identification was erroneous and unduly prejudicial; and that defendant's sentence was excessive. In addition, in a pro se brief, defendant argued that his confrontation rights were violated; that the evidence was insufficient to support the conspiracy to commit murder and aggravated assault convictions; that the prosecutor's comments on summation amounted to prosecutorial misconduct; and that his extended term sentence was illegal. We rejected these arguments, and affirmed defendant's conviction and sentence. State v. Cromer, No. A-5226-98 (App. Div. January 23, 2001), certif. denied, 168 N.J. 291 (2001).
Defendant's first PCR petition was dated September 11, 2001, although Judge Michael L. Ravin specifically noted that its filing date was in dispute. In his supporting pro se brief, defendant argued that trial counsel was ineffective because he failed to (1) investigate or interview witnesses; (2) consult with experts; and (3) proffer adequate jury charges. Defendant also argued ineffective assistance of appellate counsel. On August 30, 2006, defendant's appointed counsel filed a supplemental brief in which he argued that trial counsel did not investigate an alibi defense, presented no notice of alibi, and called no alibi witness, and that trial counsel also failed to investigate and interview Jackson, who purportedly now claimed that someone other than defendant was the shooter. PCR counsel further argued that defendant's confrontation rights were violated, and that the petition was not time-barred. On January 15, 2007, substitute PCR counsel filed an additional brief, essentially reiterating those arguments.
Judge Ravin concluded that the petition was not time-barred, see Rule 3:22-12, and granted an evidentiary hearing, at which defendant, Jackson, and Al-Tariq Little, defendant's alibi witness, testified. The judge found that all three of those witnesses lacked credibility. In contrast, Judge Ravin found defense counsel "credible" in testifying that he attempted to have an investigator contact "Jackson as there was a possibility of his recantation." He also found defense counsel endeavored to investigate and "made a good faith attempt to contact" Jackson. Judge Ravin denied defendant's PCR application in a comprehensive written opinion on August 31, 2007. We affirmed Judge Ravin's order. State v. Weeks, a/k/a Cromer, No. A-2343-07 (App. Div. October 29, 2009), certif. denied, 201 N.J. 497 (2010).
Defendant filed a second pro se petition for PCR on April 20, 2012. Defendant's supporting brief contended, among other things, that his trial counsel was ineffective in failing to investigate and call Mullen as a witness at trial, that the trial judge erred in admitting testimony concerning Mullen's statement identifying him as the shooter, that the prosecutor committed misconduct in ...