STATE OF NEW JERSEY v. TYRONE FITZGERALD A/K/A ALPHONSO BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5668-04T45668-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRONE FITZGERALD

A/K/A ALPHONSO BROWN,

Defendant-Appellant.

 

Submitted September 13, 2006 - Decided September 26, 2006

Before Judges Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 98-10-1410-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Tyrone Fitzgerald, also known as Alphonso Brown, was convicted by a jury in October 1999 of first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. For sentencing, the court merged the remaining convictions into the robbery conviction and imposed a fifteen-year term on the robbery conviction with a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a.

On direct appeal, through counsel, defendant raised the following issues:

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below)

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY ELICITED FROM A POLICE OFFICER CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT.

POINT III

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

In a pro se supplemental brief, defendant raised the following points:

POINT I

THE NO EARLY RELASE ACT EMBODIED IN N.J.S.A. 2C:43-7.2 IS UNCONSTITUTIONAL, REQUIRING THAT THE 85 PERCENT PAROLE DISQUALIFIER AS WELL AS THE FIVE YEAR PAROLE SUPERVISION UPON THE DEFENDANT'S RELEASE FROM INCARCERATION IMPOSED WITH RESPECT TO COUNT IV BE VACATED, AND THE MATTER REMANDED TO THE TRIAL COURT FOR A DETERMINATION AS TO WHAT'S [sic] EXTENT A PAROLE DISQUALIFIER IS APPROPRIATE. (Not Raised Below)

POINT II

THE TRIAL COURT ERRED BY FAILING TO AFFORD THE DEFENDANT AN APPROPRIATE HEARING TO DETERMINE THE APPLICABILITY OF THE NO EARLY RELEASE ACT TO THE PRESENT CASE. (Not Raised Below)

POINT III

THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT IV

THE TRIAL COURT ERRED IN ADMITTING THE OUT-OF-COURT IDENTIFICATION PROCEDURES WHICH TAINTED THE IN-COURT IDENTIFICATION PROCEDURES AND WHICH WAS THE PRODUCT OF IMPERMISSIBLE SUGGESTIVENESS.

We affirmed in an unpublished opinion. State v. Fitzgerald, No. A-3227-99 (App. Div. Feb. 19, 2002). The New Jersey Supreme Court denied defendant's petition for certification. State v. Fitzgerald, 174 N.J. 43 (2002).

Defendant subsequently filed a petition for post-conviction relief with Judge Dupuis, who was also the trial judge. Without providing defendant with a plenary hearing, Judge Dupuis denied defendant's post-conviction relief application on March 21, 2005. On appeal from that determination, defendant raises the following legal arguments:

1. AN EVIDENTIARY HEARING WAS REQUIRED FOR DEFENDANT TO ESTABLI[SH] THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A) THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR MISTRIAL AFTER THE JURY WAS MADE AWARE THAT THE DEFENDANT H[AD] A CRIMINAL HISTORY WHEN THE DEFENDANT'S MUG SHOT WAS MAR[KED] FOR IDENTIFICATION AND TESTIMONY OF PERSONAL KNOWLEDGE [WAS] EXTRACTED BY THE POLICE OFFICER TESTIFYING FOR [THE] STATE.

B) TRIAL COUNSEL'S PERFORMANCE WAS DEFICIENT WHEN HE FAILED [TO] CALL ALL AVAILABLE WITNESSES TO TESTIFY ON BEHALF OF [THE] DEFENDANT.

C) TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT [TO THE] KNICKNAME "HEADBANGER" OR A TATTOO WITH THE NICKNA[ME] "HEADBANGER" WAS ASSOCIATED WITH THE DEFENDANT.

We have carefully reviewed the record in light of these contentions and the applicable law. We are satisfied that the arguments advanced are without merit and do not warrant discussion in a full written opinion. R. 2:11-3(e)(2). Defendant has not demonstrated that counsel's performance was deficient so that, but for counsel's alleged errors, the result of the proceedings would have been different. See, inter alia, Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 52-53, 58 (1987). We affirm substantially for the reasons expressed by Judge Dupuis in her well-reasoned oral decision on March 21, 2005.

Affirmed. We remand for correction of the judgment of conviction.

 

Defendant's judgment of conviction indicates that his conviction was the result of a guilty plea. We remand to the trial court for correction.

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A-5668-04T4

 

September 26, 2006