STATE OF NEW JERSEY v. ALBERT BOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1407-04T41407-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT BOYD,

Defendant-Appellant.

__________________________________

 

Submitted February 16, 2006 - Decided June 23, 2006

Before Judges Wefing and Wecker.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

98-01-0036-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Patricia Drozd,

Designated Counsel, of counsel and on

the brief).

Wayne J. Forrest, Somerset County Prosecutor,

attorney for respondent (James L. McConnell,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

This is a post-conviction relief appeal. Defendant was convicted of first-degree (armed) robbery, second-degree kidnapping, and second-degree conspiracy in January 1999. At sentencing, the conspiracy conviction was merged with the robbery conviction, and defendant received an extended term sentence of thirty years for robbery, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), as well as a concurrent ten-year sentence with a five-year period of parole ineligibility for the kidnapping.

On direct appeal, we affirmed defendant's conviction. State v. Boyd, No. A-4493-99T4 (App. Div. Oct. 16, 2001). The Supreme Court denied defendant's petition for certification. State v. Boyd, 171 N.J. 44 (2002).

In his post-conviction relief motion, defendant contended that he received ineffective assistance of trial counsel Specifically, defendant argued that his trial attorney should have pursued a duress defense on his behalf and that the attorney did not properly explain to him how his prior convictions would be sanitized if he testified. See State v. Brunson, 132 N.J. 377, 385 (1993). The motion judge rejected both arguments. Defendant also challenged his sentence in his post-conviction relief motion. The motion judge granted the relief to which defendant was entitled respecting his sentence, namely, modification of the NERA aspect of his sentence to apply only to the first twenty years of his base term the maximum ordinary term for first-degree robbery. See State v. Meekins, 180 N.J. 321, 322 (2004). An amended Judgment of Conviction was entered, modifying defendant's NERA parole ineligibility term to seventeen years.

On appeal, defendant presents these arguments:

POINT I

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

AFTER RECOGNIZING DEFENDANT'S ILLEGAL SENTENCE THE LOWER COURT ERRED IN NOT GRANTING HIM A NEW TRIAL SO THAT A JURY COULD DECIDE THE FACTORS PURSUANT TO N.J.S.A. 2C:44-1.

We have carefully considered the record in light of defendant's contentions. We are satisfied that all of his arguments are without sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2). We therefore affirm, adding only these brief comments.

In our decision on direct appeal, we set forth the underlying facts as appeared from the evidence at trial, including the following:

At 3:15 a.m. on June 10, 1997 defendant drove a car into the Somerset Street Amoco gas station in North Plainfield. Two other men were in the car: Markeye Boyd (Markeye), the defendant's nephew, and Clifton "Khalid" Fowler (Fowler). Markeye had rented the car in exchange for two or three vials of cocaine. . . .

Kemal Koca (Koca), an Istanbul, Turkey native who speaks little English, was alone on duty that morning. . . . The defendant told Koca that he was not buying gas and to "[j]ust check the oil." When Koca began checking the oil, Fowler left the car, pulled a gun, and ordered Koca to give him money, keep quiet, and get in the backseat of the car, with Fowler sitting next to him.

. . . The defendant got back into the driver's seat and drove off with Koca, Fowler and Markeye to North Plainfield. There Fowler told Koca to give up all his money. Koca gave him $280; all but $65 belonged to the gas station. Koca testified at trial that he was afraid for his life during the robbery. The defendant eventually drove down a side street where Koca was released.

. . . .

Fowler, in his testimony for the State, directly implicated Boyd in soliciting and planning the robbery by providing the gun and securing the car from Markeye. This testimony was uncontroverted during the trial. The defense challenged Fowler's credibility on this point, claiming his cooperation was the result of a plea bargain. However, Fowler was not offered a sentence reduction in exchange for that cooperation.

Defendant was recognized on a security surveillance tape made at the gas station. All three were arrested.

Judge Edward M. Coleman, who presided at defendant's trial, heard arguments on this motion. The judge thoughtfully reviewed the evidence and arguments presented at trial, and concluded that there was no basis in the evidence for counsel to have sought or for the judge to have given a duress charge:

I don't find that the defendant has made a showing of ineffective assistance with regard to counsel's failure to request an instruction as to duress. The record contains no credible evidence of duress, putting aside the credibility questions regarding Markeye Boyd. Markeye's testimony, you know, basically what we have from Markeye is his uncle asked Khalid Fowler, "What are you doing?" That's not evidence of use of threats to use of unlawful force against the person of the defendant or another. Counsel was arguing to the jury that the defendant did not participate in the robbery, did not participate in the kidnapping, was not an accomplice to Fowler. Defendant attorney argued that Fowler was the sole robber. The strategy to indicate, on the other hand, that he did participate in the robbery would conflict with that defense that was obviously designed in this case. Viewing the record of Fowler as pointed out, there was an indication in this case that the defense wanted to use defensive 404(b) evidence against Fowler to show that he has a history of single-person robberies, nobody else is involved, and there is no that Fowler's testimony didn't make sense, and there is no indication that anybody but Fowler was involved in the robbery.

Seems that trial counsel's strategy was well chosen, considering the limited evidence that was available, but there is no indication that there [were] any threats or use of force against Albert Boyd in the trial. I don't have any supplements to indicate that there were any threats or use of force against Albert Boyd.

Counsel attempts to argue that if counsel attempted to argue that the defendant on the one hand didn't participate in the robbery but on the other hand if you find that he did participate in the robbery it was only because he was under duress, it will be basically a Chinese menu defense. If you pick one, you don't like that, pick the other one. Not very credible with the jury in my experience. Might be theoretically possible, but not very credible with any jury.

There is no indication in the testimony that Fowler pointed a gun at Albert Boyd, made threats towards Albert Boyd, forced Albert Boyd to do anything. The force was used against the victim. In fact, at one point they are disputing which way to go between Boyd and Fowler. Where is that a threat or that he is acting under threats? That's not credible. What are you doing? Is that a threat? That's not a threat. It's likely that if the actual trial counsel attempted to do what is suggested now, the jury would reject his case entirely.

So, I don't find this argument about a failure to inform the [jury] about duress is really a credible defense because there was no indication in anybody's testimony that any threats were made. No pointing of any guns, no use of threats, no unlawful force. . . . Fowler, his testimony was to the [effect] that the defendant was thoroughly involved. In fact, they planned it together.

At trial, the defense strategy was to place all responsibility for this crime on co-defendant Fowler. Defendant's trial attorney used N.J.R.E. 404(b) defensively in cross-examining Fowler about his prior record, and then argued in summation that Fowler's record of numerous armed robberies demonstrated that all of his crimes were committed alone. The defense theory was that the jury should infer that Fowler would not have planned this robbery with anyone else, including defendant. The attorney argued that defendant did not share Fowler's intention to rob and kidnap the gas station attendant. Emphasizing the elements of accomplice liability, the attorney argued to the jury that the State had not proved accomplice liability because it could not prove that Boyd shared Fowler's intention to kidnap the gas station attendant. In a certification submitted by the State in opposition to defendant's post-conviction relief motion, the attorney described his defense as a reasoned, though ultimately unsuccessful strategy.

We agree with Judge Coleman that the evidence at trial could not support a finding of duress. Moreover, had such a charge been given, we see no reasonable likelihood that such a charge would have affected the jury's verdict. Thus defendant could not establish the second element of the Strickland/Fritz standard for proving ineffective assistance, even if he had met the first element.

The judge also addressed defendant's argument that his attorney's failure to explain how his prior convictions would be sanitized led him to forego the opportunity to testify at trial:

There is an argument that but for a lack of explanation about what sanitization is, I would have testified. Well, let's look at that.

The defense argues that his trial attorney erred in his informing the petitioner as to the admissibility of a prior conviction leading to his decision not to testify. He argues that his trial counsel did not explain to him that in the event he testified, the jury would merely learn that he had been convicted of crimes in the past but would not hear information about the prior robbery. Therefore, his waiver of right to testify in his own behalf was not knowing or voluntary.

State, on the other hand, contends the defendant's argument that he did not understand that his conviction would be sanitized is belied by the fact that the transcript disclos[es] a discussion in open court. Counsel is right. It's right there in the record. That's the Court discussing this issue, in the presence of the defendant, laying out for the defendant this would only come in if he decides to testify; that if it did come in, it would only be to the extent of the nature of the crime and the sentences that were imposed, not the content of the actual charges, right in court, with the defendant present. Not credible argument by the defense.

[Emphasis added.]

Defendant's argument is plainly without merit.

With respect to his sentence, defendant argued in the Law Division that Blakely precluded the sentencing judge from imposing a discretionary extended term as a persistent offender without a jury making the critical findings. Defendant argued that he should have received no more than what was then the presumptive term of fifteen years on the first-degree crime, with a maximum seven-and-one-half year period of parole ineligibility. We have previously held that Blakely does not apply to the discretionary decision to impose an extended term sentence because that decision, which is based upon the defendant's criminal history, is within the Blakely recidivism exception. See State v. Drew, 383 N.J. Super. 185, 202-03 (App. Div. 2006); State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); see also State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002). We find no basis for a different conclusion here.

We agree with Judge Coleman's assessment of defendant's post-conviction relief motion, including the determination that no evidentiary hearing was required. We affirm substantially for the reasons set forth by Judge Coleman on the record on August 24 and October 15, 2004.

Affirmed.

 

Defendant's first post-conviction relief motion, seeking modification of an allegedly excessive sentence, was denied on October 17, 2001, because the argument had been rejected on direct appeal.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

(continued)

(continued)

10

A-1407-04T4

June 23, 2006