NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-09-0857.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Jennifer Web-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
Before Judges Waugh and Accurso.
Defendant Matthew Street appeals the Law Division's March 5, 2012 order dismissing his petition for post-conviction relief (PCR) on substantive and procedural grounds. We affirm.
We discern the following facts and procedural history from the record on appeal.
On August 10, 2002, Street drove with his co-defendant Kyle Smalfus, Street's girlfriend Angela Milcarek, and Smalfus's girlfriend Nicole Rodilosso to Port Elizabeth to go camping. Street was driving a white Lincoln Continental that belonged to his mother. Some of their friends drove to Port Elizabeth in a separate car. Street and others consumed alcohol and drugs on the way to Port Elizabeth and after they arrived.
Later that evening, Street, Smalfus, Milcarek, and Rodilosso decided to drive to Camden to buy drugs. After the car broke down on Route 55 in Vineland, they were able to get it started with the assistance of a passerby and a police officer. However, the car subsequently began to make clinking noises and Street pulled into a parking lot. Street and Smalfus walked across the street to a Wawa parking lot, where they unsuccessfully searched for a car to steal.
Street then went inside the store to buy something to drink. As he came out, a 1993 Toyota Corolla pulled into the parking lot. Street and Smalfus approached the driver, Jesus Reisch, and asked for a light. They then asked him to drive them, along with Milcarek and Rodilosso, two exits down the road. Reisch agreed to do so.
Before getting into Reisch's car, Street and Smalfus had a brief conversation during which they agreed to steal Reisch's car when Street asked Reisch to pull over so he could relieve himself. As they were getting into Reisch's car, Smalfus asked Street for his cigarette lighter. He then sat in the seat behind Reisch. Street sat in the passenger seat. Milcarek and Rodilosso sat in the back seat next to Smalfus.
After they reached Route 55, Street asked Reisch to pull over so he could relieve himself, but Smalfus told him to wait. Smalfus then took a larger lighter from Rodilosso's purse. Street again asked Reisch to pull over, which he did.
Once the car stopped, Street opened the door and yelled at Reisch to get out of the car. Smalfus, who had wrapped his shirt around the large lighter, placed it against Reisch's back and told him to get out of the car, saying "Don't make me do this." After Reisch got out, Street sat in the driver's seat, and Smalfus moved to the passenger seat. They drove away with Rodilosso and Milcarek in the back seat.
Reisch walked home, and his mother called the police. Patrolman Gamaliel Cruz was assigned to respond to the call. After speaking with Reisch, he interviewed two Wawa employees. They gave descriptions of the suspects that matched those Reisch had given him. Cruz found the abandoned white Lincoln in the parking lot across from the Wawa and ascertained that it was owned by Street's mother. He had the car towed to the police station.
After purchasing drugs in Camden, Street dropped Smalfus and Rodilosso in Bellmawr. Street then drove Milcarek to National Park, where they lived. Street left Reisch's car behind a store and hid the keys under a log.
The next day, Street, Milcarek, and two others drove a van and Reisch's car to Philadelphia, where they abandoned the car. After dropping off the other two, Street and Milcarek drove to the parking lot at which they had left his mother's car the night before. When Street discovered the car was no longer there, he reported it to the police.
Patrolman Ronald Garvey, who knew that Street was a suspect in the carjacking the previous night, drove to the parking lot to interview Street. Street explained to Garvey that they were looking for his mother's car. He and Milcarek agreed to accompany Garvey to the police station.
Garvey interviewed Street and Milcarek separately, and heard conflicting accounts of what they had done the previous evening. Garvey then read Street his Miranda rights. After Street responded that he wanted an attorney, questioning ceased.
Street subsequently informed Garvey that he wanted to give a statement. He was read his rights again and signed the Miranda form. Street's statement matched the general outline of the events of the night described above, except that Street claimed that he did not plan the carjacking with Smalfus. Instead, he told Garvey that he was relieving himself on the side of Route 55, when he heard Smalfus yelling at Reisch and saw him holding something to the side of Reisch's head. Street also told Garvey that it was Smalfus who disposed of Reisch's car in Philadelphia. However, in a subsequent taped statement, Street admitted that he, rather than Smalfus, had disposed of Reisch's car.
In September 2002, Street and Smalfus were indicted for first-degree carjacking, contrary to N.J.S.A. 2C:15-2(a) (count one), and third-degree theft, contrary to N.J.S.A. 2C:20-3 (count two). In February 2003, Smalfus pled guilty to first-degree carjacking.
After Smalfus pled guilty, Street contacted Smalfus and encouraged him to accept a deal to testify against him, but to lie once he took the stand by taking full responsibility for the carjacking. Street contacted Smalfus a second time, again encouraging Smalfus to lie, and promising him $2000 to do so. Smalfus declined both times.
Street's trial took place over two days in June 2003. He was found guilty of first-degree carjacking. On August 25, 2003, the trial judge sentenced Street to incarceration for fourteen years, subject to the No Early Release Act.
Street appealed. His private appellate counsel never filed a brief, causing his appeal to be dismissed for lack of prosecution in July 2005. It was reinstated in 2009. We affirmed in an unpublished opinion. State v. Street, No. A-3393-03 (App. Div. Dec. 23, 2009). The Supreme Court denied certification. State v. Street, 201 N.J. 498 (2010).
In November 2008, Street filed a pro se PCR petition. After his appeal was reinstated, the PCR petition was dismissed without prejudice pending disposition of the direct appeal.
Street's PCR petition was reinstated in July 2010. Following oral argument in March 2012, the petition was dismissed. The PCR judge found that it was time-barred and that there had been no ...