STATE OF NEW JERSEY v. KEITH BAGLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1791-04T41791-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH BAGLEY,

Defendant-Appellant.

_______________________________________________________

 

Submitted January 24, 2006 - Decided February 14, 2006

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Ind. No. 97-04-1623.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Arthur J. Owens, Designated Counsel,

on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Kenneth P. Ply, Assistant

Prosecutor, of counsel and on the brief).

Appellant Keith Bagley filed a pro se

supplemental brief.

PER CURIAM

Defendant Keith Bagley appeals from the denial of his petition for post-conviction relief. We affirm.

A jury found Bagley guilty of first degree carjacking, N.J.S.A. 2C:15-2; first degree robbery, N.J.S.A. 2C:15-1; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth degree possession of a weapon, a hammer, N.J.S.A. 2C:39-5d; and third degree possession of a weapon, the hammer, for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge imposed a sentence on the carjacking charge of twenty-six years imprisonment with thirteen years of parole ineligibility, concurrent sentences on the robbery and fourth degree weapons charges, and merged the other convictions into the robbery conviction. Bagley appealed, we affirmed, State v. Bagley, No. A-4093-97T4 (App. Div. May 11, 1999), and the Supreme Court denied certification. State v. Bagley, 162 N.J. 131 (1999). In that appeal, Bagley argued that (1) the judge erred in charging flight; (2) his counsel was inadequate because he failed to challenge the victim's identification in a hearing outside the jury's presence; and (3) his sentence was excessive because the judge improperly weighed aggravating factor number one. We discussed and rejected the first argument and found the remaining arguments lacking in sufficient merit to warrant discussion. We summarized the evidence as follows:

At approximately 12:15 p.m. on December 5, 1996, Magaline Dyer left her apartment at 243 South Harrison Street in East Orange and walked to the parking garage of the apartment complex on her way to a doctor's appointment. She placed her coat and purse in the back seat of her 1994 Bonneville and started to open the front door when she was struck in the back of her head with a hard object. She testified that she felt a tingling sensation from her head to her toes as she fell to the ground. Her assailant demanded money and struck her again in the head and then in her left rib cage with what she saw to be a hammer. When she told him that she did not have any money, the assailant picked up her car keys that had fallen to the pavement and sped off in her car.

The police arrived shortly thereafter. Ms. Dyer was taken to East Orange General Hospital where she was treated for her injuries, receiving six stitches to close a wound to her head. While at the hospital she gave a detailed description of her assailant as a dark complexioned black male about 5'6" to 5'7" tall with a beard and mustache wearing a yellow ski cap, black sneakers and black clothes. She described the hammer as silver in color with a chip in its claw.

Two weeks later, on December 19, 1996, police officers investigating an unrelated offense observed defendant. When defendant saw the police vehicle, he ran across a parking lot clutching his stomach until the police car cut him off. The defendant was told to drop whatever he had in his hands but refused to do so until one of the officers drew her weapon. The defendant then dropped a hammer with a broken claw. He was arrested, charged with possession of a burglary tool and detained because the hammer led police to suspect him in the carjacking and assault on Ms. Dyer. The following day Ms. Dyer was shown a photographic array and identified a picture of defendant as her assailant. She also identified the hammer as the weapon used to assault her. Other evidence produced by the State included still photographs taken from a video surveillance camera in the parking garage showing a black male entering and exiting the garage at the time of the assault.

Defendant elected not to testify. He called Lieutenant Stephen Bright from the Essex County Prosecutor's Office to testify that a latent fingerprint lifted from the rearview mirror of the victim's car could not be matched to defendant.

In the instant appeal, Bagley offers the following arguments through counsel:

POINT ONE

DEFENDANT'S SENTENCE WAS UNCONSTITUTIONAL AS IT WAS BASED UPON FACTS NOT FOUND BY A JURY NOR ADMITTED TO BY DEFENDANT.

POINT TWO

DEFENDANT'S INEFFECTIVENESS OF COUNSEL CLAIM SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.

POINT THREE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel's Failure to Move to Suppress Evidence Constituted Ineffectiveness of Counsel.

B. Trial Counsel's Deficient Cross-Examination of the Victim Constituted Ineffectiveness of Counsel.

POINT FOUR

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

In a supplemental pro se brief, Bagley offers these points:

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS DURING POST-CONVICTION RELIEF PROCEEDINGS, WHEREFORE, THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION, FOR A NEW POST-CONVICTION RELIEF [PROCEEDING] TO BE GRANTED, THE CONVICTION SET ASIDE AND THE INDICTMENT BE DISMISSED.

POINT II

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL DURING TRIAL, WHEREFORE, POST-CONVICTION RELIEF SHOULD BE GRANTED.

POINT III

DEFENDANT'S CASE SHOULD BE REMANDED FOR ANOTHER SENTENCING HEARING, WHERE THE TRIAL COURT USED A MUNICIPAL COURT MATTER WHICH HAD BEEN DISMISSED, IN WEIGHING THE AGGRAVATING AND MITIGATING FACTORS.

POINT IV

THE PCR COURT ERRED WHEN IT DENIED DEFENDANT'S PCR BASED ON THE PRIOR DECISION BY THIS COURT ON THE DIRECT APPEAL, WHEREFORE, THE MATTER SHOULD BE REMANDED FOR A NEW PCR PROCEEDING[].

POINT V

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL DURING DIRECT APPEAL, WHEREFORE THIS APPEAL SHOULD BE TREATED AS A NEW DIRECT APPEAL.

After carefully considering the record and briefs, we are satisfied that all of the above noted arguments are without sufficient merit to warrant discussion in a written opinion,

 
R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Merkelback in his thorough and well-reasoned oral opinion of October 7, 2004.

Affirmed.

(continued)

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A-1791-04T4

February 14, 2006