STATE OF NEW JERSEY v. GARY NEAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4148-05T44148-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY NEAL,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 28, 2007 - Decided April 25, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 02-06-1248.

Yvonne Smith Segars, Public Defender,

attorney for appellant (David A. Gies,

Designated Counsel, of counsel and on

the brief).

Edward J. DeFazio, Hudson County

Prosecutor, attorney for respondent

(Seth P. Galkin, Assistant Prosecutor,

on the brief).

PER CURIAM

Defendant Gary Neal pled guilty to armed robbery. N.J.S.A. 2C:15-1. Pursuant to a plea agreement, Judge Paul De Pascale sentenced him to twelve years imprisonment, subject to the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2, and five years of parole supervision. After unsuccessfully appealing to the Appellate Division and not seeking review by the Supreme Court, defendant petitioned for post-conviction relief (PCR), and now appeals from Judge Francis Schultz's denial of PCR.

Defendant, through PCR counsel, argues that trial counsel was ineffective because she failed to argue that defendant was not eligible for NERA as the factual basis he provided while pleading guilty was insufficient to establish the first-degree crime of armed robbery. Defendant's PCR counsel also asserts that because trial counsel failed during sentencing to argue the inapplicability of NERA and all mitigating factors, as well as subsequently declining to petition for certification, trial counsel deprived defendant of "a meaningful opportunity to be heard on appeal." In addition, according to defendant's PCR counsel, the judge should have imposed a sentence in accordance with State v. Natale, 184 N.J. 458 (2005), without regard to the presumptive statutory term. By pro se brief, defendant supplements his counsel's argument, contending that "trial counsel was ineffective by failing to investigate the case, prior to entering into a plea agreement, which would have revealed the issue of inoperability of the weapon and the fact that it was not used during the course of the robbery." Defendant further argues in his pro se brief that "defendant's sentence exceeded the then-presumptive term of fifteen years [because five years of parole supervision was added to the twelve year base term], wherefore it must be reduced from twelve years to ten years." We conclude that all points argued by defendant's counsel and defendant pro se are without sufficient merit to warrant further discussion, except for the arguments dealing with the factual basis defendant provided Judge DePascale and trial counsel's failure to investigate, which we nevertheless reject but address in turn below. R. 2:11-3(e)(2).

Here are the facts upon which defendant's guilty plea was based. Defendant, while armed with a handgun, stole personal property from Michael Blakely. Defendant claims on appeal that he never "made any threats of violence toward Blakely, did not exhibit any force and did not produce an operable weapon to facilitate the theft." Consequently, defendant claims he could not have been found guilty of armed robbery because he never admitted during his guilty plea to threatening Blakely or placing him in fear of immediate bodily injury. N.J.S.A. 2C:15-1; State v. Farrad, 164 N.J. 247, 358 (2000). Therefore, according to defendant, it was not established that he committed a NERA enumerated crime to which a period of parole ineligibility pertains and "the NERA component to his sentence should be set aside and his guilty plea should be molded to the crime which he most accurately pled." We disagree.

Defendant pled guilty to armed robbery voluntarily, with an understanding of the nature of the charge and the consequences of pleading guilty. R. 3:9-2. Even though defendant's guilty plea was procedurally flawless, we agree that an adequate factual basis supporting the conviction was required. State v. Sainz, 107 N.J. 283, 293 (1987); State v. Lightner, 99 N.J. 313, 315-16 (1985).

The problem with defendant's argument is that NERA covers all robberies, whether of the first or second degree. N.J.S.A. 2C:43-7.2(d)(9). And first-degree robbery can be committed when defendant commits a theft while "armed with . . . a deadly weapon." N.J.S.A. 2C:15-1(a)(1),(2); N.J.S.A. 2C:15-1(b). Inoperable guns can be deadly weapons. State v. Orlando, 269 N.J. Super. 116, 127 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994); State v. Gantt, 195 N.J. Super. 114, 117-18 (App. Div. 1984), aff'd, 101 N.J. 573 (1986). Even a toy gun could be a deadly weapon if used as a club, for example. State v. Ortiz, 187 N.J. Super. 44, 47 (App. Div. 1982).

During the plea colloquy, defendant's attorney asked him "[y]ou were armed with a handgun that night, Mr. Neal?" Defendant answered "[y]es, I was." The lawyer then asked, "[a]nd at some point you took personal property from Mr. Michael Blakely?" Defendant replied, "[y]es, I did." Clarifying the situation, defense counsel asked "[w]hile you were armed with a handgun," and defendant answered "[y]es."

Considering all of the reasonable inferences that could be drawn from the colloquy, the testimony was adequate to establish a first-degree robbery, which would render NERA applicable. Unlike the defendant in Lightner, defendant did not during the colloquy express any confusion about the elements of first-degree armed robbery. Revealingly, defendant also did not contend at that time that the weapon was inoperable or that he never showed the victim the weapon or threatened him with it. When asked specifically by the judge "[a]re you pleading guilty to this offense because you are, in fact, guilty of the offense," defendant replied "[y]es, sir."

Defendant in his pro se brief contends that trial counsel was ineffective because she failed to investigate. According to defendant had counsel properly investigated the matter, she would have discovered that "the case did not involve armed robbery, but only theft. She would have also moved to downgrade the charge. Furthermore, counsel completely ignored the fact that the weapon defendant was found in possession of was inoperable."

To receive PCR, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. U.S. v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Defendant has supplied no witness statements or any other evidence, beyond his own assertions, to support his contentions of an inadequate investigation. When defendant "claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Without some reliable indication of what a proper investigation would have disclosed, defendant cannot succeed on these contentions. According to the officer who had interviewed Blakely and testified at the Grand Jury, defendant had pointed the gun at Blakely, told him to pray, empty his pockets, and take off his shoes. Blakely also identified defendant as the individual who "carjacked and robbed him."

With regard to the weapon, it may not have been operable when it was seized, but it was operable after cleaning and the record does not indicate whether it was operable at the time of the crime; how the sticky substance, which rendered it inoperable, got on the weapon; or even whether defendant could have cleaned the weapon himself. Furthermore, the inoperable nature of the weapon is irrelevant to a first-degree robbery if the victim reasonably believed the object to be a deadly weapon. See State v. Hickman, 204 N.J. Super. 409, 414-15 (App. Div. 1985). Consequently, without specific support regarding how further investigation would have somehow improved the very favorable plea deal defendant received, we reject this argument.

We further point out that defendant's counsel carefully indicated that defendant did not wish to have his guilty plea vacated but only wished to have NERA found inapplicable. Yet, in the second point of his pro se supplemental brief, defendant "seeks a reduction of his sentence to ten years with the NERA 85%." We cannot reconcile these two positions. In any event, our review convinces us that none of defendant's arguments, advanced by counsel or pro se, warrant PCR under the applicable standard. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.

 

(continued)

(continued)

7

A-4148-05T4

April 25, 2007