STATE OF NEW JERSEY v. ALBERT ROBERTS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1056-04T41056-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT ROBERTS,

Defendant-Appellant.

_________________________________________________

 

Submitted February 16, 2006 - Decided March 22, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Ind. No. 98-11-1741.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mark Zavotsky, Designated Counsel,

on the brief).

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Leo Hernandez, on the

brief).

PER CURIAM

Defendant Albert Roberts appeals the denial of his petition for post-conviction relief (PCR) after a two-day evidentiary hearing. We affirm.

After a jury trial in April 1999, defendant was convicted of armed robbery, unlawful possession of a weapon, possession of a weapon for an unlawful purpose and possession of a weapon by a convicted felon. On June 25, 1999, defendant was sentenced to an aggregate term of thirty-seven years, with the 85% parole ineligibility provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applicable to thirty years of the term. In a per curiam opinion filed June 21, 2001, we affirmed defendant's conviction but directed that a consecutive seven-year term imposed on the possession of a weapon by a convicted felon count be made concurrent with his armed robbery sentence. As a result, defendant's sentence was thirty years, subject to NERA. Defendant's petition for certification was denied on September 20, 2001.

Defendant filed a timely PCR application. On May 27, 2004, defendant, his original trial attorney, and the trial prosecutor all testified concerning one of the issues raised in defendant's petition: whether trial counsel had communicated to defendant a fifteen-year plea offer. On June 24, 2004, trial counsel and defendant gave additional testimony. After argument, Judge Schultz rendered an oral opinion denying three aspects of defendant's petition: that trial counsel was ineffective by (1) failing to properly challenge defendant's identification by the victims, (2) failing to obtain a knowing waiver of a NERA hearing, and (3) failing to communicate plea offers to defendant. With respect to defendant's contention that his 85% NERA parole disqualification should only apply to the presumptive term of his sentence rather than to the entire extended term, the judge dismissed that claim without prejudice since the issue was then pending before the Supreme Court. After State v. Meekins, 180 N.J. 321 (2004), was decided, defendant re-presented his petition, and Judge Schultz modified defendant's sentence to reflect that the parole disqualifier only applied to the first twenty years of the sentence rather than the full thirty years.

On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE TRIAL JUDGE USED FACTORS OUTSIDE OF HER AVAILABLE DISCRETION TO SENTENCE THE DEFENDANT TO AN EXTENDED TERM.

POINT II

TRIAL COUNSEL WAS INEFFECTIVE IN THAT COUNSEL FAILED TO COMMUNICATE A PLEA OFFER TO THE DEFENDANT WHICH WOULD HAVE BEEN ACCEPTED GIVEN REASONABLE PROBABILITY.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MEET THE MINIMUM STANDARD OF REPRESENTATION BY INADEQUATELY CHALLENGING THE OUT OF COURT IDENTIFICATION OF THE DEFENDANT WHICH ESTABLISHED THE FOUNDATION OF THE STATE'S CASE.

As part of his comprehensive oral opinion, Judge Schultz made credibility determinations with respect to the testimony concerning communication of plea offers to defendant. Specifically, he found defendant "to be lacking credibility," and his trial attorney "completely credible" in testifying that whatever plea offer the prosecutor made, trial counsel communicated to defendant. "[T]he offer was clearly communicated to [defendant], and [defendant] clearly understood it." The judge found "very convincing" trial counsel's contemporaneous record of having conveyed to defendant a "one-day offer" of fifteen years subject to NERA, which defendant rejected. These findings are fully supported by the record and are entitled to our deference. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). As a result, we reject defendant's argument that his trial counsel was ineffective based on failure to communicate a plea offer.

With respect to defendant's argument that trial counsel failed to properly handle the identification issue, defendant focuses on counsel's failure to obtain an expert to challenge the photo array from which the victim selected defendant's picture or to assist counsel by preparing him for cross-examination of the victim or the police officer who prepared the array. However, as Judge Schultz aptly pointed out, this argument is presented entirely in the abstract, defendant having failed to explain with any specificity the manner in which such an identification expert would have assisted in this case. Indeed, even at this point defendant has failed to produce a report from any such expert explaining how counsel's handling of the identification issue was deficient. Thus, neither prong of the ineffective assistance of counsel test has been met. See State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984)).

Finally, following the denial of his PCR petition, defendant sought to raise a different sentencing argument than the one reserved by Judge Schultz and then subsequently entertained after Meekins, supra, was decided. In a pro se petition, defendant contends that his sentence violated the principles established by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). By order of July 21, 2005, Judge Kenny dismissed that petition without prejudice since Blakely's impact on the New Jersey sentencing scheme was then pending before our Supreme Court, making defendant's contention premature. Despite having failed to represent the issue to the trial court in the wake of State v. Natale, 184 N.J. 458 (2005) (Natale II) and State v. Abdullah, 184 N.J. 497, (2005), defendant raises the issue on the present appeal.

To the extent that defendant's argument is based on the judge's decision to impose a discretionary extended term, N.J.S.A. 2C:44-3a, we have concluded that such a determination does not run counter to the Natale II/Abdullah principles. State v. Young, 379 N.J. Super. 498, 509-10 (App. Div. 2005). Further, since an extended term for a first-degree offense has no presumptive term, being "between 20 years and life imprisonment," N.J.S.A. 2C:43-7a(3), Natale II and Abdullah do not apply to defendant's thirty-year sentence. Abdullah, supra, 184 N.J. at 507-08. The lack of a presumptive term means that there was "no de facto ceiling below life imprisonment." Id. at 508. As a result, we reject defendant's sentencing argument.

Affirmed.

 

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A-1056-04T4

March 22, 2006