STATE OF NEW JERSEY v. MARC A. JORDAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5886-04T25886-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC A. JORDAN,

Defendant-Appellant.

____________________________________________

 

Submitted April 26, 2006 - Decided June 9, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-02-0203.

Marc A. Jordan, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Thomas V. Campo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this second post conviction relief (PCR) petition, defendant claims that his trial counsel provided him with ineffective assistance of counsel in connection with his August 2, 2001, conviction for first-degree robbery, N.J.S.A. 2C:15-1 (Count One); third-degree terroristic threats, N.J.S.A. 2C:12-3b (Count Two); third-degree witness tampering, N.J.S.A. 2C:28-5a (Count Three); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1 (Count Four).

The relevant evidence, if credited, discloses that defendant's conviction stems from an incident that occurred in Ocean Township on March 6, 1997, at approximately 8:45 a.m. At that time, defendant exited a blue Pontiac Grand Prix at the intersection of Sunset and Unami Avenues and approached the victim, Anthony Kellerman, who was walking to work at Foodtown. Defendant accused Kellerman of robbing "one of my boys." Kellerman attempted to walk away, but defendant grabbed him and demanded his wallet. When Kellerman struggled to escape, defendant threatened to shoot him. Kellerman, in fear of his life and believing defendant was armed, allowed defendant to strip him of his bomber jacket. Defendant also took the victim's gold chain, money access card (MAC), and one dollar. Ultimately the victim got away, but not before recording the license plate number of the Grand Prix. The license plate was traced to the residence of Sarah Henderson, a co-indictee who was not tried with defendant. Henderson's sister, Jackie Henderson, gave the police a photo identification card of Sarah's boyfriend. The card displayed the name and address of Lionel L. Maxine, Jr. The police proceeded to the address and, upon observing Maxine, realized he bore no resemblance to the person depicted in the photograph. They continued their investigation and "based upon information received," were able to determine the name of the person in the photograph. As a result, the police compiled a photo array of possible suspects. They presented the photo array to Kellerman for review, and within thirty seconds Kellerman identified defendant. Defendant thereafter called Kellerman at Foodtown, apologized for robbing him, and offered to return the stolen items. In return, defendant asked Kellerman not to identify him as the robber. Defendant also started calling Kellerman at his home.

On March 28, 1997, while at home and in the presence of an officer, Kellerman paged defendant. Defendant did not respond to the call, so the officer left. Fifteen minutes after the officer left, however, defendant rang Kellerman's doorbell. When Kellerman did not answer, defendant yanked on the common front door handle to the inside apartments and looked through the mailboxes. Kellerman's first floor neighbor, George Kary, a parole officer, demanded that defendant leave the porch because he suspected that defendant was the robber who had been stalking Kellerman. Kary went to Kellerman's apartment and found him looking out the window. Kellerman confirmed that the person outside the door was the robber but was afraid to confront him. Kary returned downstairs with the intention of placing defendant under arrest, but defendant ran and jumped into a red-colored car that sped away. Defendant eventually surrendered, but Kellerman received a threatening letter from defendant right before trial.

A trial was conducted in July and August 2001 before Judge Ira A. Kreizman, who also presided over both of defendant's PCR petitions. The jury found defendant guilty of all four charges. Defendant was sentenced under the Three Strikes Law, N.J.S.A. 2C:43-7.1a, to a life sentence without parole on the armed robbery conviction, consecutive to another life sentence without parole that defendant was already serving. Sentences imposed on the remaining charges were to be served concurrent with the life sentence. Defendant's conviction and sentence were affirmed on appeal. State v. Jordan, No. A-4816-01T4 (App. Div. October 31, 2003). On March 1, 2004, the Supreme Court denied defendant's petition for certification. State v. Jordan, 179 N.J. 369 (2004).

Defendant filed his first petition for PCR on August 24, 2004. In the petition, defendant urged that he was denied effective assistance of counsel because his trial attorney, who recommended that he reject the plea offer extended by the State, failed to advise him of the sentencing consequences under the Three Strikes Law. Judge Kreizman denied the petition on the ground that defendant had previously raised the same issue in connection with another indictment that was then before the Appellate Division. Defendant did not appeal the trial court's ruling.

The present PCR petition was then filed on April 11, 2005. Defendant contends his trial counsel failed to object to Kellerman's testimony that when he asked defendant why defendant was robbing him, defendant told him, "this is what I do." Defendant also contends trial counsel failed to object to the prosecutor's reference to this statement during summation. Defendant claimed the testimony was objectionable because it had not been revealed to him during discovery and because it implied that he had committed prior bad acts. Defendant also urged that the trial court failed to instruct the jury as to the appropriate evidential use of the statement. Judge Kreizman denied the petition. He concluded that the State did not purposely elicit the statement from the victim and that it just "came out." In addition, the judge found the statement was not "terribly prejudicial" and noted the evidence presented against defendant was "overwhelming."

On appeal defendant raises the following claims:

POINT I

TRIAL COUNSEL FAILED TO OBJECT TO THE VICTIM'S TESTIMONY AND THE PROSECUTOR'S CLOSING ARGUMENTS ALLEGING AN INFLAMMATORY ADMISSION MADE BY DEFENDANT DURING THE COMMISSION OF THE ALLEGED ARMED ROBBERY THAT "THIS IS WHAT I DO." BECAUSE SUCH ADMISSION WAS NOT DISCLOSED IN DISCOVERY AND THE COURT ERRED IN FAILING TO GIVE SUA SPONTE A HAMPTON/KOCIOLEK CHARGE AND AN OTHER-CRIMES EVIDENCE INSTRUCTION AS TO THE SAID ADMISSION, THEREBY VIOLATING DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT II

DETECTIVE'S TESTIMONY THAT "BASED ON INFORMATION RECEIVED," HE WAS ABLE TO DETERMINE THE DEFENDANT'S (SUSPECT) NAME ON A PHOTO IDENTIFICATION CARD, AND AS A RESULT, HE PUT TOGETHER A PHOTOGRAPHIC ARRAY IN WHICH INCLUDED DEFENDANT'S PICTURE CONSTITUTED INADMISSIBLE HEARSAY AND THUS ADMISSION OF SUCH VIOLATED DEFENDANT'S CONFRONTATION RIGHTS. (NOT RAISED BELOW)

We have considered these contentions in light of the record, applicable law, and the PCR judge's findings of fact and conclusions of law, both of which are supported by his assessment of the evidence and legal principles. We are convinced the issues raised on appeal are of insufficient merit to warrant further discussion. R. 2:11-3(e)(2). We add only that defendant's argument with respect to his admission, "this is what I do," was not raised either in his direct appeal or in his first PCR petition. In his direct appeal, defendant could have raised this argument as plain error. R. 2:10-2. Also, in his first PCR petition, he could have raised the precise argument he is making here, i.e., that his attorney was ineffective for failing to object to this testimony during the trial. Given the magnitude of the evidence against defendant, as found by the trial judge, it cannot be said that the issue should be addressed to avoid fundamental injustice or that denial of relief would be contrary to the federal or state constitutions. R. 3:22-4.

Likewise, defendant's reliance on State v. Branch, 182 N.J. 338 (2005), to support his contention that Detective Pangaro's testimony that he was able to determine defendant's identity "based upon information received" was inadmissible, is misplaced. In Branch, supra, the identification of the defendant, a robbery and burglary suspect, was based solely upon the investigating officer's reliance upon hearsay evidence. Id. at 342-43. The Court observed:

there was no trial testimony or evidence, other than those identifications, that could have led [the detective] to focus on defendant as a suspect. Thus, the jury was left to speculate that the detective had superior knowledge through hearsay information implicating defendant in the crime. Because the nameless person who provided the "information" to [the detective] was not called as a witness, the jury never learned the basis of that person's knowledge regarding defendant's guilt, whether he was a credible source, or whether he had a peculiar interest in the case. Defendant never had the opportunity to confront that anonymous witness and test his credibility in the crucible of cross-examination.

[Id. at 347-48.]

Here, when Officer Pangaro received the "information," he already had defendant's photograph which, as we noted in defendant's direct appeal, had been "obtained at the residence identified through the license plate number of the vehicle used in the robbery." Jordan, supra, No. A-4816-01T4 (slip op. at 29). The error identified in Branch, supra, was found to be plain error because the State's case against that defendant was "far from overwhelming." 182 N.J. at 353. Here, Judge Kreizman specifically noted the magnitude of evidence against the defendant and how there was no room for any possible doubt as to his guilt.

Affirmed substantially for the reasons set forth by Judge Kreizman in his oral decision of June 3, 2005.

 

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A-5886-04T2

June 9, 2006