STATE OF NEW JERSEY v. RENARD JOSEPH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENARD JOSEPH,

Defendant-Appellant.

______________________________________________

December 3, 2015

Submitted November 17, 2015 Decided

Before Judges Yannotti and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-04-1097.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Renard Joseph appeals from the April 23, 2014 order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing.

Defendant was convicted after trial of the armed robbery of a beautician and two of her patrons in a Newark beauty salon in December 2007. He was sentenced on the armed robbery convictions to three concurrent eighteen-year prison terms, each with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. He was also convicted on related weapons offenses, for which he received concurrent five-year terms.

On direct appeal, defendant challenged the out-of-court identifications of the three victims. We affirmed defendant's convictions but remanded for resentencing to reflect the appropriate merger of the weapons offenses. State v. Joseph, 426 N.J. Super. 204, 230 (App. Div. 2012). The Supreme Court denied defendant's petition for certification. State v. Joseph, 212 N.J. 462 (2012).

On April 1, 2013, defendant filed a pro se PCR petition alleging ineffective assistance of his trial counsel. After the appointment of counsel, oral argument was heard on the petition by Judge Sherry Hutchins-Henderson. Judge Hutchins-Henderson denied the petition without a hearing.

On appeal, defendant raises the following points

point one

the defendant presented a prima facie case for ineffective assistance of counsel where his trial attorney moved in an untimely manner to offer an alibi witness who was allegedly with the defendant during the time the offense was committed.

point two

an evidentiary hearing is required where the defendant asserts a prima facie case involving facts which are not part of the trial record.

point three

the defendant incorporates herein all of the arguments for post-conviction relief set forth in the pcr brief filed by his pcr attorney.

Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Hutchins-Henderson's thorough and comprehensive written decision. We add only the following brief comments.

Defendant's main argument on appeal is that he received ineffective assistance when his trial counsel failed to provide timely alibi notice for a witness, Tashema Coleman. Trial counsel called two alibi witnesses at trial, defendant's father, Herman Joseph, and Clarence Walker. Both witnesses testified that they were with defendant during the time of the robbery.

Defendant now maintains that Tashema Coleman would have testified that defendant was with her and drove her to Walmart at the time of the robbery. Judge Hutchins-Henderson noted that defendant failed to provide "affidavits or certifications based on personal knowledge that provide evidence of . . . the existence of an exculpatory witness."

In order to be entitled to an evidentiary hearing, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Where the defendant asserts that his attorney failed to call witnesses who would have exculpated him, he must assert the facts that would have been revealed, "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.

Defendant has failed to make this showing. In addition, the trial testimony of defendant's two alibi witnesses suggests that his trial counsel's decision not to call Coleman may well have been a sound strategic attempt to avoid conflicting statements.

The testimony of the three victims was uncontroverted that the robbery took place at approximately 9:40 a.m. Defendant vaguely asserts in his brief that Ms. Coleman would have testified that defendant drove her to Walmart "around the time the offense occurred." Both of defendant's alibi witnesses testified at trial that defendant was with them between 8:30-9:00 a.m. and 10:15-10:30 a.m. that morning. For Coleman's version not to conflict with the testimony of defendant's father and Clarence Walker, her trip to Walmart would have to have occurred well before the robbery, and such testimony would not have presented an alibi for defendant. Defendant's PCR counsel candidly conceded that Coleman would have presented an "imperfect alibi."

We thus conclude that trial counsel's failure to serve timely alibi notice for Tashema Coleman did not amount to ineffective assistance of counsel, and Judge Hutchins-Henderson properly denied defendant's PCR petition without a hearing.

Affirmed.