STATE OF NEW JERSEY v. NATHANIEL TROUPE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5068-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATHANIEL TROUPE,

Defendant-Appellant.

________________________________

 

Submitted May 24, 2006 - Decided August 1, 2006

Before Judges Wefing and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

No. 94-05-1910.

Yvonne Smith Segars, Public Defender,

attorney for appellant (David A. Gies,

Designated Counsel, of counsel and

on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Leeann Cunningham,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant appeals from the trial court's denial of his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Tried to a jury, defendant was convicted of first-degree carjacking, N.J.S.A. 2C:15-2; five counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1; first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); four counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); five counts of possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree possession of a weapon under circumstances not manifestly appropriate for its lawful uses, N.J.S.A. 2C:39-5d; and third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7. At sentencing, the trial court imposed an aggregate term of incarceration of eighty-six years and specified that defendant would have to serve twenty-eight years before becoming eligible for parole.

Defendant appealed, and we affirmed both his convictions and his sentence. State v. Troupe, No. A-6661-94/A-3051-95 (App. Div. Jan. 23, 1998). The Supreme Court denied defendant's petition for certification. State v. Troupe, 154 N.J. 607 (1998).

In March 1999, defendant filed a pro se verified petition for post-conviction relief. Counsel was assigned to represent defendant, and a brief was prepared and submitted. For reasons that do not appear in the record, defendant's petition was not heard until May 2005, more than six years after it was filed. After hearing oral argument, both from defense counsel and from defendant, himself, the trial court denied the petition.

On appeal, defendant raises the following arguments:

POINT ONE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT INDEPENDENTLY INVESTIGATE THE STATE'S ASSERTION THAT FINGERPRINTS COULD NOT BE LIFTED FROM THE WHITE FORD MUSTANG

POINT TWO

THE PCR COURT ERRED BY FAILING TO CONDUCT AN EVIDENTIARY HEARING AS TO WHETHER A CO-DEFENDANT'S RECANTATION WARRANTED THE JURY'S VERDICTS TO BE VACATED

POINT THREE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT MOVE FOR EITHER A MISTRIAL OR A SEVERANCE AFTER ONE OF THE CO-DEFENDANTS IMPLICATED THROUGH UNANTICIPATED TRIAL TESTIMONY THE DEFENDANT IN OTHER CRIMES

POINT FOUR

CONTRARY TO THE PCR COURT'S FINDING, THE DEFENDANT ALLEGED THAT HIS TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE BECAUSE HE DID NOT MOVE TO DISMISS THE INDICTMENT ON THE GROUND THE ARREST WARRANTS WERE NOT SIGNED BY A COMPLAINANT WHILE UNDER OATH IN THE PRESENCE OF A JUDICIAL OFFICER

POINT FIVE

THE DEFENDANT WAS DENIED THE CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL REVIEW OF HIS PCR APPLICATION WHERE OVER SIX YEARS PASSED BETWEEN THE FILING DATE AND THE HEARING DATE THROUGH NO FAULT OF THE DEFENDANT (Not Raised Below)

On the night of March 26, 1994, defendant, accompanied by Carl Jacobs and Howard Caesar, went on a crime spree through Newark. After stealing George Cheek's car at gunpoint, the men committed a series of additional robberies during which several individuals were shot and wounded. The three men were apprehended and identified that night.

A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). In State v. Fritz, 105 N.J. 42, 60 (1987), our Supreme Court adopted the Strickland standards.

[A] defendant whose counsel performed below a level of reasonable competence must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'

[Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).]

Thus, to establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. Id. at 52. Second, defendant must show that this deficient performance materially affected the outcome of his trial. Ibid. In determining whether defendant has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations. Estelle v. Williams, 425 U.S. 501, 512, 96 S. Ct. 1691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Buonadonna, 122 N.J. 22, 38 (1991).

We have considered each of defendant's contentions within this analytical framework, and we agree with the conclusions reached by the trial court. In light of the nature of the proofs presented at trial, it could not reasonably be said that a different result could have obtained if defendant's attorney had retained an expert to examine the car that had been taken from George Cheek at gunpoint to see if defendant's fingerprints were on the vehicle. In addition, defendant's counsel in his summation stressed the absence of fingerprint evidence to argue the weakness of the State's case. We affirm the denial of defendant's petition for post-conviction relief substantially for the reasons expressed by Judge Vichness in his oral opinion of May 6, 2005.

Defendant has raised an additional point--that the delay between his filing of his petition for post-conviction relief and its disposition by the trial court was a violation of his right to a speedy trial. We need not decide whether we agree with defendant's assertion that State v. LeFurge, 222 N.J. Super. 92 (App. Div.), certif. denied, 111 N.J. 568 (1988), established an analogous constitutional right with regard to petitions for post-conviction relief. Because we are satisfied that the grounds put forth by defendant and his attorney in his petition lacked substantive merit, defendant was not prejudiced by the delay.

Having said that, we would be remiss if we did not also comment that a delay such as this is, on its face, inexcusable. The State asserts in its responding brief that the delay is attributable to defendant because a brief was not filed by his attorney until 2005. We cannot determine from the vantage point of a reviewing court who bears the responsibility for this delay. We do not expect, however, to see it repeated.

 
Affirmed.

(continued)

(continued)

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A-5068-04T4

August 1, 2006