STATE OF NEW JERSEY v. JOHN HOWARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0709-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN HOWARD,

Defendant-Appellant.

_______________________________________

March 15, 2011

 

Submitted February 8, 2011 Decided

 

Before Judges Parrillo, Yannotti and Skillman.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-0121.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant John Howard appeals from an order entered by the Law Division on August 18, 2009, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-7(b) (count four). Defendant was tried before a jury.

At the trial, the State presented evidence which established that on November 23, 2002, defendant walked into a liquor store on Route 22 in Union, New Jersey, which was owned and operated by Arvind Patel (Patel). According to Patel, defendant was wearing a green winter jacket with a hood, and a scarf that partially covered his face. Patel became nervous because he thought it was not cold enough for a person to be wearing a winter jacket and scarf.

Defendant asked if Patel was the owner of the store, and Patel said that he was. Defendant pulled out a gun, pointed it at Patel's chest and told him that he should "give up what you got." Patel became more nervous. He said that the gun appeared to be "like [a] toy gun."

Patel told the defendant that he was nervous because his wife also was behind the counter. Patel told him to shoot if he wanted to but there was a policeman "right behind" him. According to Patel, defendant became nervous and left the store. Defendant ran through the parking lot and Patel ran after him. Patel's wife phoned the police.

Defendant crossed the road and went towards the entrance to the Garden State Parkway. Patel returned to the store, obtained his car keys, got into his car and went after defendant. Patel last saw defendant when he was walking away down a one-way street. Patel returned to the store.

Three police officers were there. Patel gave the officers a description of the suspect. Patel described him as a black male, about five feet eight or five feet nine inches tall, who was wearing a green, military-type jacket with a hood, a scarf and blue jeans. Patel testified that, as the suspect was leaving the store, the scarf dropped and he was able to see the suspect's face. He said the suspect was unshaven and had a "tiny mustache."

The officers transmitted the description by radio. After receiving the transmission, a police officer detained defendant as a possible suspect, and the police took Patel to the place where he was being held. Patel positively identified defendant as the person who had entered his store and pulled the gun on him. Nearby, the police found a BB gun and the hood from defendant's jacket.

The jury found defendant guilty on all counts. The trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a). The court merged count two with count one and sentenced defendant on count one to twenty-two years of incarceration. The court ordered that defendant serve eighty-five percent of that term before becoming eligible for parole, as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also merged count four with count three and sentenced defendant on count three to a concurrent eight-year term.

Defendant appealed from the judgment of conviction entered on June 11, 2004. He raised the following arguments:

POINT ONE

INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS AND CIRCUMSTANCES SURROUNDING THE VICTIM'S IDENTIFICATION OF THE DEFENDANT, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)

 

POINT TWO

THE DEFENDANT'S CONVICTION ON COUNT THREE, SECOND-DEGREE POSSESSION OF A WEAPON WITH THE INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER MERGES WITH THE DEFENDANT'S CONVICTIONS ON COUNT ONE, FIRST DEGREE ARMED ROBBERY, AND DEFENDANT'S CONVICTION ON COUNT TWO, FOURTH-DEGREE AGGRAVATED ASSAULT WITH A DEADLY WEAPON, ALSO MERGES WITH DEFENDANT'S CONVICTION ON COUNT ONE

 

POINT THREE

THE DEFENDANT'S PERSISTENT OFFENDER SENTENCE OF [TWENTY-TWO] YEARS WITH 85% PAROLE INELIGIBILITY ATTEMPTED ARMED ROBBERY1 WITH A B-B GUN IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE

 

POINT FOUR

THE DEFENDANT'S CONVICTION ON INDICTMENT NO. 03-02-00124 MUST BE VACATED

 

Defendant filed a pro se supplemental brief and raised the following additional arguments:

POINT ONE

PRESENCE OF A WEAPON IN A BUSINESS ESTABLISHMENT DOES NOT TRANSLATE INTO AN OFFENSE OF ARMED ROBBERY

 

POINT TWO

THE VERDICT SHEET DID NOT REFLECT THE COURT'S JURY CHARGE THUS THE JURY VERDICT OBTAINED WITHOUT USE OF INSTRUCTION OF HOW TO USE THE VERDICT SHEET TO FIND GUILT

 

In an unpublished opinion, we affirmed defendant's conviction and the sentence on count one, but concluded that the charge of possession of a weapon for an unlawful purpose, as charged in count three, should have been merged with the armed robbery charge. State v. Howard, No. A-0404-04 (App. Div. Apr. 12, 2006) (slip op. at 5). We remanded the matter to the trial court for entry of a corrected judgment of conviction. Id. at 9. Defendant thereafter filed a petition for certification, seeking review of our judgment by the Supreme Court.

While that petition was pending, defendant filed a petition for PCR and a motion to correct an "illegal" sentence. Defendant asserted that his conviction for first-degree robbery should be "amended" to second-degree attempted robbery, and the extended- term sentence violated the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

On November 17, 2006, the Supreme Court granted defendant's petition for certification, limited to defendant's extended-term sentence. State v. Howard, 188 N.J. 574 (2006). The Court summarily remanded the matter for re-sentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). Howard, supra, 188 N.J. at 574.

On April 20, 2007, the trial court denied defendant's PCR petition and his motion to correct the sentence. Defendant appealed and raised the following arguments:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITION FOR POST CONVICTION RELIEF

 

B. PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL DID NOT OBJECT TO THE VERDICT SHEET SUBMITTED TO THE JURY WHICH DID NOT ALLOW FOR A FINDING OF THE LESSER-INCLUDED OFFENSE OF ATTEMPTED ROBBERY

 

C. PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL DID NOT REQUEST THAT THE COURT CHARGE THE JURY WITH THE LESSER INCLUDED OFFENSE OF SECOND-DEGREE ROBBERY

 

Defendant filed a pro se supplemental brief and raised the following arguments in the PCR court:

POINT ONE

THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR REHEARING AND THE REASSIGNMENT OF COUNSEL, IN ORDER THAT A FULL RECORD CAN BE MADE ON ALL MATTERS WHICH LAY OUTSIDE THE RECORD

 

POINT TWO

THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR A NEW SENTENCING HEARING, WHERE THE COURT CONSIDERED AN INAPPLICABLE AGGRAVATING FACTOR AND FAILED TO CONSIDER APPLICABLE MITIGATING FACTORS, TO IMPOSE A DISCRETIONARY EXTENDED TERM

 

In an unpublished opinion, we concluded that defendant had established a prima facie case of ineffective assistance of counsel because, although the trial court had charged the jury on attempted robbery, the verdict sheet did not give the jury an opportunity to find defendant guilty of attempted or second-degree robbery. State v. Howard, No. A-4998-06 (App. Div. Apr. 9, 2009) (slip op. at 4-5). We rejected defendant's other arguments. Id. at 5-6. We remanded the matter to the trial court "for a hearing to determine whether trial counsel made a strategic decision not to request the inclusion of attempt or second degree robbery on the verdict sheet." Id. at 5.

The PCR court conducted an evidentiary hearing on July 24, 2009. Defendant's trial attorney Brian McCormack (McCormack) testified that he "did not request the attempt because in terms of strategy it was a straight I.D. and we were not looking to minimize [defendant's] conduct." McCormack conceded, however, that the State's proof of identification was strong. When defendant's PCR counsel asked the court to permit defendant to testify, the court denied the request.

The court then placed its decision on the record. The court concluded that defendant had not been denied the effective assistance of counsel. The court stated that the verdict sheet permitted the jury to find defendant guilty of either first-degree or second-degree robbery. The court found that there was no need to include attempt on the verdict sheet because the offense would be a robbery, whether there was a theft or an attempt to commit a theft. The court also found that there was no need to include attempted robbery on the verdict sheet because "there was no attempted robbery here."

The court entered an order dated August 18, 2009, denying PCR. This appeal followed. Defendant raises the following arguments:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT WAS DENIED THE OPPORTUNITY TO PRESENT ANY PROOF AT THE EVIDENTIARY HEARING

 

POINT II

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN CONNECTION WITH THE VERDICT SHEET

 

A. Trial counsel failed to object to the omission of attempted robbery

 

B. Trial counsel failed to object to the omission of second-degree robbery

 

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

 

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court for consideration of ineffective-assistance-of-counsel claims raised under out State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and he was prejudiced by counsel's deficient performance. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To establish that his attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In addition, to establish that he was prejudiced by the deficient performance of his attorney, a 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.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant argues that his trial attorney was deficient because he did not seek changes to the court's verdict sheet that would have permitted the jury to find him guilty of second-degree robbery or attempted robbery. We disagree.

The Criminal Code provides that a person is guilty of robbery if

in the course of committing a theft, he:

 

(1) Inflicts bodily injury or uses force upon another; or

 

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

 

(3) Commits or threatens immediately to commit any crime of the first or second degree.

 

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

 

[N.J.S.A. 2C:15-1(a).]

 

The Criminal Code further provides that robbery is a second-degree offense but will be a first-degree crime "if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).

In this case, the verdict sheet required the jury to first determine whether defendant was guilty of the crime of robbery. The verdict sheet indicated that, if the jury found defendant guilty of that offense, it should determine whether defendant had been "armed with and/or used or threatened to use a deadly weapon."

Thus, the verdict sheet permitted the jury to find defendant guilty of either first-degree or second-degree robbery, depending on its responses to the questions on the verdict sheet. Therefore, trial counsel was not deficient in failing to request that the verdict sheet be modified to allow the jury to consider whether defendant was guilty of second-degree robbery.

Moreover, trial counsel did not err by failing to request that the verdict sheet permit the jury to find defendant guilty of attempted robbery, in lieu of first-degree or second-degree robbery. We are convinced that, based on the evidence presented at trial, the court erred by instructing the jury on attempted robbery and the omission of attempted robbery as a lesser offense on the verdict sheet was not reversible error.

A person can be found guilty of robbery "even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury." State v. Farrad, 164 N.J. 247, 258 (2000).

Furthermore, a person can be found guilty of attempted robbery if he attempts to threaten another person with or purposely puts that individual in fear of immediate bodily injury. Id. at 259-60. Thus, a person can commit attempted robbery if he takes a substantial step towards threatening another person or putting that individual in fear of immediate bodily injury. Id. at 260. Therefore, a person can be found guilty of attempt to commit a robbery if he "'is apprehended before he reaches his robbery victim and thus before he has actually engaged in threatening conduct[.]'" Ibid. (quoting Model Penal Code & Commentaries, Part II 222.1 at 114-15).

In this case, the evidence did not establish a rational basis for charging attempted robbery or including that offense on the verdict sheet. As we have explained, Patel testified that defendant pointed a gun at his chest and told him to "give up what you got." The evidence therefore established that defendant actually threatened Patel or purposely put him in fear of immediate bodily injury, rather than merely attempting to do so.

Farrad supports our conclusion that the evidence here was insufficient to warrant a charge on attempted robbery or inclusion of that offense on the verdict sheet. In Farrad, the police observed defendant outside of a fast-food restaurant, walking back and forth in front of building and looking inside. Id. at 252. The police had been investigating a number of recent robberies of such establishments. Ibid. The defendant entered the restaurant and approached the counter. Ibid. He placed his hand into his right coat pocket. Ibid. The officers apprehended the defendant and found a loaded revolver in his pocket. Ibid. The Court held that these facts could support a conviction for attempted robbery. Id. at 260.

The facts of this case are substantially different from those in Farrad. Defendant did more than engage in an act that constituted a substantial step towards threatening Patel or placing him in fear of immediate bodily harm. Therefore, the evidence did not provide a rational basis for charging the jury on attempted robbery or including that offense on the verdict sheet.

Defendant argues, however, that because Patel thought defendant's gun was a toy, he was not placed in fear of immediate bodily injury when defendant pointed the gun at him. However, the evidence established that the weapon was not a toy. Indeed, the jury found that defendant had been "armed with and/or used or threatened to use a deadly weapon."

We therefore conclude that the trial court correctly determined that defendant had not been denied the effective assistance of counsel because his trial attorney did not request that attempted robbery be included as a lesser offense on the verdict sheet. We further conclude that, even if counsel erred by failing to object to the verdict sheet, defendant was not prejudiced by the error because the result here would have been the same. The evidence did not provide a rational basis for finding defendant guilty of attempted robbery rather than first-degree robbery.

Defendant additionally argues that the trial court erred by failing to allow him to testify at the remand hearing. In our prior opinion, we stated that defendant had presented a prima facie claim of ineffective assistance of counsel which warranted an evidentiary hearing. Howard, supra, No. A-4998-06 (slip op. at 4-5). As we have explained, however, we have now determined that defendant did not establish a prima facie case of ineffective assistance of counsel. Therefore, we need not consider whether the trial court erred by failing to permit defendant to testify at the remand hearing.

Affirmed.

 

 

1 Defendant was convicted of robbery, not attempted robbery.