STATE OF NEW JERSEY v. MARCUS MCCRAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0854-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS MCCRAY,

Defendant-Appellant.

_______________________________

April 29, 2011

Submitted April 11, 2011 Decided

Before Judges Lisa and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-06-2203.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the trial court's denial, without an evidentiary hearing, of his second petition for post-conviction relief (PCR). We affirm.

Almost seventeen years ago, on June 4, 1994, a jury found defendant guilty of second degree robbery, second degree aggravated assault, and third degree possession of a weapon for an unlawful purpose. On June 21, 1994, the court sentenced defendant on the robbery as a persistent offender to an extended term of twenty-years, with ten years of parole ineligibility, concurrent with an eight-year term, with four years of parole ineligibility on the aggravated assault. The weapons charge was merged into the aggravated assault conviction. The sentence was consecutive to one that defendant was then serving on a separate indictment.

We affirmed defendant's conviction on direct appeal on April 18, 1996, State v. McCray, A-2376-94 (App. Div. Apr. 18, 1996), and the Supreme Court denied certification on November 19, 1996, State v. McCray, 147 N.J. 261 (1996). The trial court denied defendant's first PCR petition without an evidentiary hearing on July 30, 1998. After defendant filed a notice of appeal on March 24, 2004, we affirmed on December 8, 2005. State v. McCray, A-4093-03 (App. Div. Dec. 8, 2005).

Defendant filed this second PCR petition in May 2008. By order entered August 1, 2008, the trial court determined that defendant demonstrated good cause for the appointment of counsel, notwithstanding that this was his second PCR petition.

After a non-testimonial hearing on June 19, 2009, the court issued an oral opinion denying the petition, and entered a final order on July 2, 2009. This appeal followed.

Defendant raises the following point on appeal:

DEFENDANT'S ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO CHARGE THE JURY WITH THE LESSER-INCLUDED OFFENSE OF THEFT FROM THE PERSON.

We affirm on the grounds that the petition is time-barred. As our discussion demonstrates, we also find that defendant's petition lacks substantive merit. A brief review of the facts presented at trial is necessary.

I.

Shawn Standifer, the victim, testified that after entering his apartment building at around 3:30 p.m. on February 27, 1993, he was accosted by four men. Two had been waiting in a parked car as he entered. The other two were already in the building. He just had time to collect his mail. He could only identify defendant among the assailments. He knew defendant to be his wife's cousin. One of the unidentified men grabbed Standifer in a headlock. Another pointed a gun at him, and defendant struck Standifer in the head and hand with a hammer. Defendant told the man with the gun to shoot Standifer, but he did not. Meanwhile, defendant went through Standifer's pockets, removing $165, which included his recently received wages, and his mail and keys. Standifer was then told not to go to his apartment. So, he returned to the deli where he worked, and was transported to a hospital where he received several sutures. He showed the jury the scars on his head.

Standifer also testified that in July 1993, defendant went to Standifer's apartment, forced his way in, and demanded to know why he was pressing charges. Standifer explained that he was doing so because of what defendant had done. Defendant threatened that if he continued to press charges, he "won't make it to court."

Standifer also testified that he asked defendant why he took his money, and defendant answered, that "it had to be done." Standifer's wife Latonya1 was present for that conversation and she testified that, when defendant asked to explain the theft, defendant said, "it was just a little something we threw in."

Both Standifers acknowledged that defendant claimed, after he barged into their apartment that day in July, that he attacked the victim because he had been told that Standifer had been abusive towards Latonya, defendant's cousin. Both Standifers denied that there was domestic violence in their relationship.

Defendant testified at his trial. He admitted that he had three recent prior convictions of third degree crimes. He testified that he was present when Standifer was assaulted, but his role was as a peacemaker. He claimed that the assault was committed by Donald Wright, who was another cousin of Latonya and had been sharing the apartment with the Standifers and their small child. It was undisputed at trial that Wright and Standifer had previously argued. Standifer had become upset when Wright brought a woman to the apartment late one night and displaced his son from his bedroom.

According to defendant, Wright and he were at the apartment building to retrieve Wright's things. Defendant had come from roofing work and was wearing his tool belt, which contained a hammer. Wright and Standifer got into a fight, and defendant tried to break it up. Wright reached for defendant's hammer and struck Standifer with it. Wright had moved to Mississippi and was unavailable at trial.

The defense also presented evidence that, ironically, provided a possible motive for the robbery. Defendant's father Louis McCray2 testified that he had paid the security for the apartment where his niece Latonya and the victim lived. They had agreed to repay that amount, but had only made one modest installment against the balance due. Louis testified that he had sent his son to the apartment on a day in February 1993, the precise date he could not recall, to collect funds from Latonya. However, his son ultimately returned empty-handed.

Defendant also testified that he went to the apartment on a previous occasion at his father's behest. He testified that he accompanied Latonya to a check-cashing place, where she cashed a food stamp check. But, when she and he returned to the building, Standifer, who had been waiting at home with the child, became irate over the delay, and refused to allow anything to be paid to defendant. Defendant testified that Standifer was angry and threatening to his wife. Defendant claimed that Wright had told him that Standifer had previously been abusive to his wife. So, he warned Standifer not to harm his cousin.

By contrast, both Standifers testified that on that previous occasion, defendant did receive funds for his father after she returned from the check-cashing place. Standifer was irate not with his wife, but with defendant, because he left his wife at the check-cashing place and made her wait until he returned to shuttle her back to the apartment.

In a charging conference, defense counsel asked the trial judge to charge theft from the person as a lesser-included offense of robbery. Defense counsel argued that the jury could conceivably find that the theft was an afterthought, in which case, an element of robbery would not have been proved. The judge declined to charge theft, stating: "There's no evidence that it's an afterthought if it occurred. Your client doesn't admit, he denies that it occurred and the only other evidence is that he was hit on the head and threatened with a gun and [the property] was taken." Defense counsel persisted, claiming that defendant's hearsay statement, reported by Latonya, that he "threw in" the theft, was evidence that the theft was an afterthought.

The judge was unpersuaded: "No, I think if you beat somebody up and take his money, even though you don't decide to take his money until after you've beaten him to a pulp you are still guilty of robbery, not theft. I won't charge theft from the person." Regarding robbery, the court charged the jury that it needed to find that defendant "in the course of committing a theft," knowingly inflicted bodily injury or used or threatened force, or purposely put another in fear of immediate bodily injury. He defined "in the course of committing a theft," to mean "if it occurs during the theft, the commission of the theft itself or during an attempt to commit the theft or in immediate flight after the attempt or commission."

The jury began deliberations at 11:07 a.m. The jury took an hour lunch, heard a read-back of all of Latonya's testimony, asked no questions, and returned a verdict at 3:35 p.m.

Neither on direct appeal, nor in his first PCR petition, did defendant raise the issue of charging theft as a lesser-included offense.

II.

We affirm the trial court's denial of defendant's PCR because it was untimely, and defendant has failed to meet the high hurdle for relaxing that time-bar. We recognize that the time-bar was not the basis of the trial court's decision. But, the State raised the issue before us, and we are free to affirm the trial court's result on an alternative ground. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546, 565 (1991).

A petition for post-conviction relief must be filed within five years of the judgment of conviction. R. 3:22-12(a). After defendant's petition was denied, the Supreme Court adopted revisions to the rule in 2009 and 2010 that strengthened the five-year bar. See Pressler & Verniero, Current N.J. Court Rules, Comment 1 on R. 3:22-12 (2011). However, even under the version in place when the trial court ruled, defendant's petition was untimely. The prior rule stated, with respect to petitions that did not challenge the legality of a sentence, "No . . . petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." Pressler, Current N.J. Court Rules, R. 3:22-12(a) (2008). Ignorance of the law and rules of court does not qualify as excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

Under the old rule, even if a petitioner could not show excusable neglect in meeting the five-year bar, the court was empowered to relax the rule in the interests of justice. State v. Mitchell, 126 N.J. 565, 580 (1992).3 However, the hurdle was set high, because of the competing interest in finality, and because, with the passage of time, it would become more difficult to retry the case, as memories dimmed, witnesses died or became unavailable, and evidence was lost. Id. at 575. Consequently, the old rule could only be relaxed in exceptional circumstances. Id. at 580. In determining the presence of an injustice "sufficient to relax the time limits," trial courts had to consider three factors: "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner s claim . . . ." Ibid. A court could relax the Rule if a petitioner "articulate[d] facts that demonstrate[d] a serious question about his or her guilt . . . ." Ibid.

The longer the petitioner waits, the higher the hurdle. "Absent compelling extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Ibid.; see also State v. Milne, 178 N.J. 486, 492-96 (2004) (affirming denial of petition for relief filed more than ten years after conviction and more than five years after a favorable change in case law); State v. Goodwin, 173 N.J. 583, 594-95 (2002) (affirming trial court s dismissal of the defendant's second petition, filed almost eight years after conviction).

Defendant claims "excusable neglect" based on his discovery in late 2007 or early 2008 that our Supreme Court held that afterthought robbery was not encompassed within New Jersey's robbery statute. State v. Lopez, 187 N.J. 91, 101 (2006). Defendant perceives Lopez as a change in the law. He argues that it should be retroactively applied to his case, and, once applied, compelled the court at his trial to charge the jury with the lesser-included offense of theft.

We disagree. Simply put, Lopez did not adopt a change in the law. It rejected one.

Lopez was charged with robbery among other crimes. State v. Lopez, supra, 187 N.J. at 93. The State's version was that Lopez lured the victim from a bar to nearby railroad tracks in order to rob him. Ibid. Lopez attacked him with a blow to the throat, stole his necklace, and left him to die. Ibid.

In his defense, Lopez testified that at the bar the victim had propositioned him for sex. Ibid. After they both left the bar and walked near the railroad tracks, the victim allegedly threatened to have sex with Lopez voluntarily or by force. Ibid. The victim lunged at Lopez, who struck him in the throat. State v. Lopez, supra, 187 N.J. at 93. The victim fell face down in the water. Ibid. Then, and only then, defendant decided to steal the victim's necklace. Ibid.

Upon the State's request, and over the defense's objection, the court expressly instructed the jury that afterthought robbery was encompassed within New Jersey's robbery statute. Id. at 94-95. Departing from the model criminal jury charge, the court instructed that "it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the intent to steal and the use or threat of force can be found as constituting a single transaction." Id. at 94.

The jury obviously had difficulty squaring that instruction with the model jury charge language requiring the use of force in the course of the theft. It asked for clarification about the concept of "single transaction." State v. Lopez, supra, 187 N.J. at 95. The court then introduced the concept of "overlapping" facts, stating: "The language of a single transaction is used to define a single event or single occurrence. The jury is to decide whether under the facts as it finds them to be the use of force and the intent to steal are overlapping . . . ." Ibid. The jury found defendant guilty of robbery, among other crimes. Ibid.

The Supreme Court found that the charge was erroneous because afterthought robbery was not encompassed in New Jersey's robbery statute, N.J.S.A. 2C:15-1(a). Id. at 97-100. The Court drew its conclusion from the accepted elements of the crime as defined in prior case law, including State v. Farrad, 164 N.J. 247, 257 (2000), and State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982) certif. denied, 93 N.J. 297 (1983). State v. Lopez, supra, 187 N.J. at 98. "[I]f the intimidating or assaultive conduct that elevates theft to robbery must occur 'during the theft or attempted theft or in immediate flight therefrom,' it follows that intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery." Id. at 98 (quoting State v. Carlos, supra, 187 N.J. Super. at 412). While there was no authority expressly excluding afterthought robbery, the Court recognized that there was no New Jersey case law including it. Id. at 100-01. The Model Jury Charge did not include afterthought robbery or the concept of a theft committed as part of a "single transaction" that included assaultive or intimidating conduct. Id. at 95.

Inasmuch as we do not view State v. Lopez as establishing a new rule of law, but rather, as rejecting one, there is no new law to conceivably be applied retroactively to defendant's case. "Our cases have recognized that if a ruling does not involve a 'departure from existing law,' the retroactivity question never arises and our power to limit the retroactive effect of a decision is not implicated." State v. Afanador, 151 N.J. 41, 57 (1997) (quoting State v. Burstein, 85 N.J. 394, 403 (1981)). Since the pre-Lopez law on robbery was unchanged, defendant may not hinge on Lopez his fourteen-year delay in complaining about the refusal to charge theft as a lesser-included offense. Therefore, we do not find excusable neglect.

Nor do the interests of justice demand relaxing the five-year limit. We have considered the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner s claim. We have already addressed the cause of the delay, which we find unpersuasive. We would only add in reference to that factor that even after Lopez was decided, defendant waited almost two years to file his petition. Although he claims ignorance of the law, that is not an excuse. State v. Murray, supra, 162 N.J. at 246. Instructively, the current rule requires the filing of a second petition within one year after our Supreme Court or the United States Supreme Court recognizes a new constitutional right (as distinct from a change in statutory interpretation), if made retroactive to collateral appeals. R. 3:22-12(a)(2)(A). Moreover, it is manifest that the State would suffer prejudice if it were required to retry this case over eighteen years after the incident.

Finally, the importance of defendant's claim does not justify a different result. Defendant was not convicted of an afterthought robbery, as he has alleged. Unlike in Lopez, supra, 187 N.J. at 94, where the judge expressly instructed that it would make "no difference whether the intent to steal was formulated before the use of force or after it," the judge in defendant's case instructed the jury that the intimidating or assaultive behavior must have occurred "in the course of committing a theft."

Moreover, the overwhelming evidence was that defendant and his cohorts committed acts of violence and threats against Standifer in the course of the theft. Thus, we find no "serious question about [defendant's] guilt." State v. Mitchell, supra, 126 N.J. at 580. Standifer testified that one man was holding a gun as defendant went through his pockets. Standifer and his wife indisputably owed money to defendant's father. Defendant had been to the apartment building before to collect. According to defendant, he was rebuffed.

Defendant's own out-of-court explanations for the theft did not prove that the theft was an afterthought. According to Standifer, defendant said he committed the theft because "it had to be done." According to Latonya, he said, "we threw [it] in." (emphasis added). In neither out-of-court statement does defendant allegedly say when he decided that "it had to be done" or when he and his cohorts reached a collective decision and "threw [it] in." If he decided before or during the attack, then the theft was not an afterthought. Moreover, there is no evidence to indicate that any consultations or communications occurred between defendant and his cohorts during the attack, leading to a decision to commit a theft. Thus, if the statement "we threw [it] in" was believed at all, the defendant and his fellow attackers must have decided to do so before the attack. In that case, there was no afterthought; the theft was the product of forethought. Moreover, defendant at trial denied he took anything. Thus, there was no rational basis for the jury to decide that the theft was an afterthought and determine it fell outside the scope of the robbery statute.

In sum, the interests of justice do not mandate relaxation of the rule and consideration of defendant's petition.

A

1 We will continue to refer to the victim as "Standifer" and to his wife as "Latonya."

2 To avoid confusion, we will refer to defendant's father as "Louis."

3 By contrast, current Rule 3:22-12(a)(1) provides that the five-year time limit may be avoided only if defendant shows both excusable neglect and "reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Moreover, no second petition shall be filed more than one year after initial recognition of a constitutional right by the United States Supreme Court or the New Jersey Supreme Court, if expressly made retroactive to cases on collateral review. R. 3:22-12(a)(2)(A). Finally, the recent revisions made the five-year time limit non-relaxable, except as allowed by the Rule itself. R. 3:22-12(c).