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NOT FOR PUBLICATION WITHOUT THE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-4093-03T44093-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS McCRAY,

Defendant-Appellant.

 

Submitted: November 10, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Number 2203-06-93.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marcus McCray appeals from an order entered in the Law Division on July 30, 1998, denying his application for post-conviction relief. We affirm.

Tried to a jury on charges contained in Essex County Indictment Number 2203-06-93 in 1994, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. On June 21, 1994, defendant was sentenced on the second-degree robbery conviction to an extended term of twenty years' imprisonment with a ten-year parole disqualifier. On the second-degree aggravated assault conviction, the court imposed an eight-year term with a four-year parole disqualifier, concurrent to the sentence imposed on the robbery conviction. The third-degree weapon conviction was merged with the aggravated assault conviction.

On his direct appeal, defendant presented the following issues:

POINT I

PROSECUTORIAL MISCONDUCT REQUIRES A NEW TRIAL.

A. COMMENTS DURING CLOSING ARGUMENT WERE IMPROPER.

B. RECOMMENDATIONS AT SENTENCING WERE IMPROPER (Not Raised Below).

POINT II

FAILURE OF THE STATE TO TIMELY PROVIDE DISCOVERY REQUIRED EXCLUSION OF THE INFORMATION.

POINT III

THE TRIAL JUDGE ERRED IN CHARGING THE JURY.

A. THE CHARGE RELATING TO SECOND DEGREE AGGRAVATED ASSAULT WAS ERRONEOUS.

B. THE CHARGE RELATING TO ROBBERY USED "KNOWINGLY" NOT "PURPOSELY" (Not Raised Below).

POINT IV

THE INDICTMENT WAS ERRONEOUS (Not Raised Below).

POINT V

THE SENTENCE IMPOSED WAS EXCESSIVE.

A. THE IMPOSITION OF A MAXIMUM EXTENDED TERM AND A MAXIMUM PERIOD OF PAROLE INELIGIBILITY WAS IMPROPER (Not Raised Below).

B. COUNTS II AND III SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES (Not Raised Below).

In an opinion decided on April 18, 1996, we rejected these arguments and affirmed. State v. McCray, A-2376-94T4 (Apr. 18, 1996). The Supreme Court denied defendant's petition for certification on November 19, 1996. State v. McCray, 147 N.J. 255 (1996).

On May 30, 1997, defendant filed a petition for post-conviction relief, contending he had been provided ineffective assistance of counsel. Argument on the petition was conducted in the Law Division on July 30, 1998. The judge issued an order and written opinion on that date, denying the motion. The judge determined that defendant was not entitled to an evidentiary hearing because he had failed to establish a prima facie claim of ineffective assistance of counsel. Defendant's claim of newly discovered evidence was also rejected, the court noting that "[t]he evidence has not even been discovered yet[,]" and that defendant "is not barred from raising this claim in a motion for a new trial once he has the newly discovered evidence."

On appeal, defendant presents the following arguments for our consideration:

POINT I

MR. McCRAY WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL.

A. THE TRIAL COURT LACKED JURISDICTION OVER MR. McCRAY BECAUSE THE INDICTMENT WAS NOT A "TRUE BILL." THE INDICTMENT WAS NOT ENDORSED BY THE JURY FOREPERSON AS REQUIRED BY R. 3:7-3(a), RENDERING MR. McCRAY'S SENTENCE ILLEGAL (Not Raised Below).

B. MR. McCRAY'S DUE PROCESS CONSTITUTIONAL RIGHTS WERE VIOLATED BECAUSE HE WAS NOT PRESENT DURING PRETRIAL MOTIONS (Not Raised Below).

POINT II

THE SENTENCE IS ILLEGAL.

A. MR. McCRAY'S SENTENCE IS ILLEGAL BECAUSE IT WAS NOT IMPOSED IN ACCORDANCE WITH LAW AS THE INDICTMENT WAS NOT ENDORSED BY THE JURY FOREPERSON.

B. MR. McCRAY'S SENTENCE IS ILLEGAL BECAUSE THE TRIAL JUDGE INCREASED THE PRESUMPTIVE SENTENCE OF 15 YEARS TO 20 YEARS IN ABSENCE OF JURY FACT-FINDING BASED ON PROOF BEYOND A REASONABLE DOUBT OF AGGRAVATING FACTORS.

POINT III

THE TRIAL COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING.

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons articulated by Judge Goldman in his written decision issued on July 30, 1998. We add the following.

In order to establish a claim of ineffective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance was deficient, and (2) "but for" counsel's unprofessional errors, a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). Defendant must identify specific acts or omissions allegedly showing unreasonable professional judgment, then must demonstrate that those acts or omissions had a prejudicial effect on the outcome. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test). Defendant must persuade this court that his attorneys made errors so serious that they were not functioning as the "counsel" guaranteed by the Sixth Amendment. State v. Marshall, 148 N.J. 89, 156-57 (1997). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93.

Applying these principles, even assuming the representation he received throughout the course of this matter had been deficient, we conclude that defendant has failed to demonstrate how that performance had a prejudicial effect on the outcome of the trial or post-conviction proceedings. The essence of defendant's arguments is his contention that some other party his cousin committed the crimes for which he was convicted. However defendant has failed to proffer any evidence, other than his bare assertion, that could have been brought forth to exonerate him.

We also note that there was no basis for a Wade hearing, since the victim knew defendant, who was his wife's cousin. Moreover, that issue was raised by trial counsel during a pre-trial proceeding, and the trial judge ruled that defendant could raise the identification issue during trial. Although defendant was not present during that pre-trial hearing, the issue of identification was again raised by counsel in defendant's presence at trial. Although defendant was entitled to be present during each critical stage of the proceedings, including the pretrial motions, State v. Robertson, 333 N.J. Super. 499, 508 (App. Div. 2000), he has failed to demonstrate how his absence from the pretrial proceedings prejudiced him at trial.

The State acknowledges that the indictment was not endorsed by either the grand jury foreperson or the assistant prosecutor pursuant to R. 3:7-2. However, defendant has failed to allege or show any resulting prejudice. Indeed, defendant was fully on notice of all charges against him, and there is nothing in the record to suggest improper actions committed by the assistant prosecutor or foreperson. The defect in the grand jury proceeding was procedural, not jurisdictional, and essentially harmless in light of his conviction. See e.g. United States v. Titchell, 261 F.3d 348, 351 (3d Cir. 2001).

In absence of advancing a prima facie claim of ineffective assistance of counsel, an evidential hearing was unwarranted. State v. Preciose, 129 N.J. 451, 462 (1992).

 
Defendant's contention that his extended-term sentence was illegal because it was contrary to the constitutional precepts announced in Blakely v. Washington, 522 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) is devoid of merit. Those principles are only applicable to cases on direct appeal as of the date of our Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005). Id. at 494. More significantly, the Blakely principles are otherwise inapplicable because the extended term imposed was based on defendant's criminal history. See Apprendi v. New Jersey, 530 U.S. 466, 488-90, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); State v. Franklin, 184 N.J. 516, 538 (2005).

Affirmed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-4093-03T4

December 8, 2005