NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 18, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-05-1295.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Haas.
Defendant Mario Vega appeals from the May 2, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree armed burglary, N.J.S.A. 2C:18-2; second-degree conspiracy to commit these crimes, N.J.S.A. 2C:5-2; third-degree criminal restraint, N.J.S.A. 2C:13-2a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree possession of a weapon by certain persons, N.J.S.A. 2C:39-7b. At sentencing, the judge merged various counts and imposed an aggregate thirty-year term of imprisonment, with a twenty-two-year period of parole ineligibility.
Defendant appealed his convictions and sentence. We affirmed the convictions, but remanded for resentencing so that the judge could further explain his reasons for imposing consecutive sentences and clarify which counts had been merged. State v. Vega, Docket No. A-0548-06 (App. Div. Feb. 23, 2009). Our Supreme Court denied certification. State v. Vega, 200 N.J. 369 (2009).
Pursuant to our remand, the judge resentenced defendant and again imposed an aggregate thirty-year term. Defendant appealed the sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed.
Defendant filed a PCR petition and his assigned counsel argued in his brief that defendant's trial counsel rendered ineffective assistance of counsel by: (1) failing to object to the prosecutor's closing statement about the condition of the boots taken from him at the time of his arrest; and (2) failing to file a motion to suppress the boots as evidence. In a May 2, 2012 written opinion, Judge John T. Mullaney, Jr. made factual findings on each of these contentions, and determined they lacked merit.
During his summation to the jury, the prosecutor suggested that certain "black marks" that were now on the boots and "blue markings" found on the "imprint paper" that was used to take a footprint impression at the crime scene, were put there by the State's trace evidence expert during his examination of the evidence. However, the expert "did not testify [as] to the origin of the black trace material nor did he testify as to why the paper was blue." Because there was no factual support for the prosecutor's statements, the judge found that defendant's "trial counsel should have objected to the prosecutor's summation at this point."
However, the judge found that "even if trial counsel's performance was deficient in this respect, the prosecutor's comments were minimal deviations from the facts that had no capacity to impact on a jury's verdict." In so ruling, the judge noted our observation on direct appeal that defendant "never denied that the boots were his." Vega, supra, (slip op. at 24). Thus, Judge Mullaney concluded that defendant failed to satisfy the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), which requires a showing that the deficiency prejudiced the defense. The judge ...