STATE OF NEW JERSEY v. ANTWONE FOSQUE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6279-05T46279-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTWONE FOSQUE,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 6, 2009 - Decided

Before Judges Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-03-0309.

Yvonne Smith Segars, Public Defender, attorney for appellant (Damen J. Thiel, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Antwone Fosque appeals from an order entered on June 2, 2006 denying his petition for post-conviction relief (PCR), except for his alibi claim "raised recently," which was denied without prejudice for three months to allow defendant to present evidence to support his claim.

A judgment of conviction was entered on May 5, 2003 after a jury found defendant guilty of first degree armed robbery, N.J.S.A. 2C:15-1 (Count Two); and third degree witness tampering, N.J.S.A. 2C:28-5a (Count Five). On Count Two, defendant was sentenced to a term of sixteen years subject to thirteen years, seven months, nine days parole ineligibility; and on Count Five to a consecutive term of four years, for an aggregate term of twenty years.

On January 31, 2005, we affirmed on direct appeal, State v. Fosque, No. A-0351-03 (App. Div. January 31, 2005) ((slip op. at 11), and on July 14, 2005, the Supreme Court denied certification, State v. Fosque, 185 N.J. 38 (2005). On September 22, 2005, defendant filed a pro se PCR petition and on October 19, 2005, counsel was assigned.

We need not detail the facts giving rise to the charges against defendant because they are set forth in our decision affirming his conviction. Fosque, supra, A-0351-03 at 1-3.

In his PCR petition, among other claims, defendant claimed ineffective assistance of counsel for counsel's failure to investigate his alibi. After hearing argument on the petition, the trial court found that defendant failed to demonstrate a prima facie case of ineffective assistance to warrant an evidentiary hearing. The petition was denied, except for the alibi issue, and defendant was given three months to expand upon that issue, but he failed to do so and filed this appeal pro se two months after entry of the order denying PCR.

Counsel was subsequently assigned and now argues:

POINT ONE

THE MOTION COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT ESTABLISHED A CLAIM FOR INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS

A. Defendant was denied effective assistance of counsel because his trial attorney failed to conduct an investigation of defendant's alibi, obtain a statement from the alibi witnesses, secure their trial testimony, or adequately prepare for trial.

B. Defendant was denied his right to effective assistance of counsel during his appeal of the judgment of conviction and petition for post-conviction relief because his attorneys failed to (1) raise vital legal and factual issues from the trial, (2) adequately investigate defendant's alibi, or (3) to adequately consult with defendant on his appeal.

POINT TWO

THE COURT SHOULD GRANT DEFENDANT'S APPEAL BECAUSE THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR BY FAILING TO SEVER DEFENDANT'S TRIAL FROM THE TRIAL OF CODEFENDANT TIRU.

POINT THREE

IN THE ALTERNATIVE TO ORDERING A NEW TRIAL, THE COURT SHOULD REMAND THIS MATTER TO THE TRIAL COURT FOR THE SCHEDULING OF AN EVIDENTIARY HEARING BECAUSE TESTIMONY SHOULD BE TAKEN REGARDING DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND DEFENDANT SHOULD BE PERMITTED TO INVESTIGATE HIS ALIBI

In his first point, defendant claims that trial counsel should have investigated his alibi witnesses. He argues: "Had a basic investigation been conducted, counsel could have learned for a fact whether Kiran Patel and/or Nessie Agusto would have been able to testify that defendant was already at the Days Inn by the time the robbery was committed." Defendant overlooks the fact that he did not even take the opportunity given to him by the trial court to develop his purported alibi defense and present the evidence to that court. Here, he merely states that the witnesses were not contacted and no alternative theories were presented at trial.

He further argues that trial counsel was ineffective for failing to move to suppress any of the evidence or testimony or to sever defendant's trial from that of his co-defendant. Again, however, defendant does not proffer any basis for these claims. He merely states that when he was tried with the co-defendant, he "was forced to bear the burden of defending both the State's charges and co-defendant Tiru's attempts to distance himself from defendant."

None of these arguments are supported by any proffers of evidence that may have changed the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). There are no certifications from potential witnesses describing their testimony and defendant offers no reasonable grounds for suppression of evidence.

In his second point, defendant argues ineffective assistance of both trial and appellate counsel. He claims that appellate counsel was inadequate because he failed to raise trial counsel's errors and trial counsel failed to investigate facts, raise the alibi defense, interview witnesses sufficiently or cross-examine witnesses sufficiently. Again, he gives no details and makes only bare allegations.

Defendant also argues that PCR counsel was deficient because he failed to include the names of the possible alibi witnesses, one of whom could have testified as a "completely independent and unbiased witness." Even in this appeal, however, there are no proffers of testimony by the witnesses.

In short, defendant's arguments lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth by Judge James Mulvihill on the record of June 2, 2006.

Affirmed.

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A-6279-05T4

June 4, 2009