STATE OF NEW JERSEY v. STEPHEN SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3061-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN SMITH,

Defendant-Appellant.

_____________________________________

August 11, 2011

Submitted April 13, 2011 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-05-0660.

James S. Friedman, attorney for appellant.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Stephen Smith appeals from an order dated January 26, 2010, denying his petition for post conviction relief (PCR). We affirm.

A jury convicted defendant of all four counts of an indictment charging first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. At sentencing on February 1, 2006, the court merged several counts and sentenced defendant to fourteen years in prison on the robbery charge, with eighty-five percent of the term to be served before eligibility for parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a concurrent term of four years on the third-degree charge of unlawful possession of a handgun.

We affirmed defendant's conviction and sentence on direct appeal. State v. Smith, A-4834-05 (App. Div. Nov. 29, 2007), and the Supreme Court denied his petition for certification, State v. Smith, 194 N.J. 445 (2008). We summarize the facts as set forth in our opinion on direct appeal:

The convictions arose out of a robbery that took place on December 20, 2001, at around 12:15 p.m., on Main Street in Clifton. . . . [T]he victim of the robbery, testified that he was walking down the street when a silver Ford Probe pulled up. The passenger jumped out and asked him for directions. After responding to the inquiry, the victim began to walk away when he was grabbed from behind by the driver of the car, whom the victim identified in court as defendant. Defendant screamed "police" and slammed the victim against the car. The passenger held a gun to the victim's ribs, while defendant searched his pockets. The robbers took from the victim thirty dollars, his mortgage check, his wallet, and a gold chain with a cross, and then fled in the car.

Later that day the silver Ford Probe was found crashed into a utility pole with no occupants inside. A loaded handgun and the gold chain with the cross were found inside the vehicle. Defendant was the registered owner of the vehicle. At the police station, the victim saw the vehicle being towed in and identified it as the one involved in the robbery. He also identified codefendant, Michael Hall, who had been apprehended, as the passenger with the gun. In addition, the victim identified the gun and his chain with the cross. A number of days later the police came to the victim's house to show him photographs, and he was able to identify the defendant in one of the photographs.

The defense contended that defendant was not a participant in the robbery and that the victim misidentified him. Codefendant Michael Hall, who [had pleaded guilty to committing the robbery and] testified for the State, said that he did not know defendant and stated that a John Walker was with him in the car on the day in question. The defense sought to establish through the testimony of defendant's mother that his car had been stolen on December 20, 2001, and that the theft was reported to the police that day. However, police records indicated that the police were told the next day, on December 21, 2001, at 9:13 a.m. that the vehicle had been stolen at 12:15 p.m. the previous day. Rejecting this defense, the jury found defendant guilty on all charges.

[Smith, supra, A-4834-05 (slip op. at 2-4) (footnote omitted).]

Defendant filed a PCR petition in April 2008, which was subsequently supplemented by counsel. The petition alleged several grounds to vacate his conviction and sentence, including that his trial attorney was ineffective because he failed to conduct adequate pretrial investigation regarding John Walker, the alleged participant in the robbery who was misidentified at trial as defendant. The trial court conducted an evidentiary hearing in December 2009 and January 2010. It denied defendant's petition by a detailed oral statement of reasons in open court and a supplemental letter-opinion dated January 26, 2010, and it entered an order of denial on the same date.

We affirm the trial court's order essentially for the reasons stated by Judge Reddin in his oral and written opinions. We briefly add the following.

Nowhere in defendant's PCR petition or appellate brief is there evidence that the John Walker who according to Hall participated with him in the robbery actually exists. Despite the passage of six years from the time that trial defense counsel learned Hall had named John Walker as his accomplice in the robbery, no information has developed that a person by that name had any potential relationship to Hall or the robbery. Hall's testimony exculpating defendant was subject to the jury's credibility determination. The jury obviously did not believe it, as it did not believe other aspects of defense evidence, such as the Ford Probe having been stolen before the robbery occurred.

To show entitlement to relief from a criminal conviction, defendant must satisfy both parts of the test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987):

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of this test, "[t]he defendant 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 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Without any indication in the record the John Walker named by Hall is a real person and that defense counsel's investigation would have uncovered some evidence helpful to the defense, defendant has not proven the second prong of the Strickland test. Counsel's unperformed investigatory efforts must be shown to have at least potentially borne fruit before a conviction may be set aside on collateral review. Since defendant did not make such a showing, the trial court correctly denied the PCR petition.