STATE OF NEW JERSEY v. JACOB BENNETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5308-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACOB BENNETT,

Defendant-Appellant.

________________________________

August 15, 2011

Submitted January 5, 2011 - Decided

Before Judges Fuentes and Nugent.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

04-04-0383.

Yvonne Smith Segars, Public Defender, attorney

for appellant (David A. Gies, Designated Counsel,

on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Sara B. Liebman,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Jacob Bennett appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

A Union County Grand Jury indicted and charged defendant with one count of first degree robbery, N.J.S.A. 2C:15-1, one count of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), one count of third degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and two counts of second degree conspiracy to commit a robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1. Defendant was tried before a jury and was convicted on all counts.

on December 2, 2005, the court sentenced defendant to an aggregate term of twenty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's conviction and sentence on direct appeal, State v. Bennett, No. A-3852-05 (App. Div. Nov. 5, 2007), and the Supreme Court denied certification, 193 N.J. 587 (2008). With respect to the underlying facts that led to defendant's conviction, we incorporate by reference the facts recited in our unpublished opinion affirming defendant's conviction. Bennett, supra, slip op. at 2-7.

On February 22, 2008, defendant filed this PCR petition alleging ineffective assistance of trial counsel. The principal issue raised concerned his attorney's failure to prevent him from being tried wearing prison garb.1 Defendant was assigned PCR counsel, and the petition came for adjudication before Judge Joseph Perfilio, who also presided over defendant's trial. After considering the arguments of counsel, reviewing the certification in support of the petition, and relying on his familiarity with the trial record, Judge Perfilio denied the petition without a hearing on November 21, 2008. Judge Perfilio found defendant had not set forth a prima facie case of ineffective assistance of counsel under the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant now appeals, raising the following arguments:

POINT ONE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE BECAUSE SHE DID NOT REQUEST ANY PROTECTIVE PROCEDURES WHICH WOULD ASSURE THAT THE DEFENDANT RECEIVED A FAIR TRIAL IN SPITE [OF] BEING DRESSED IN PRISON GARB.

POINT TWO

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE BECAUSE SHE DID NOT ADEQUATELY PREPARE FOR TRIAL BY INTERVIEWING TWO WITNESSES WHO COULD HAVE PROVIDED A DIFFERENT DESCRIPTION OF ONE OF THE PERPETRATORS OF THE ROBBERY.

POINT THREE

AN EVIDENTIARY HEARING IS REQUIRED WHERE THE DEFENDANT ASSERTS A PRIMA FACIE CASE INVOLVING FACTS WHICH ARE NOT PART OF THE TRIAL RECORD.

We reject these arguments and affirm substantially for the reasons expressed by Judge Perfilio in his oral opinion denying defendant's petition delivered from the bench on November 21, 2008. Defendant's clothing during the trial did not have any prison insignia or other features identifying defendant as an inmate. Although defendant wore prison-issued khaki pants, defendant was provided with civilian dress shirts and ties. The only inmate indication on defendant's person was a number on the sole of his right boot. As Judge Perfilio correctly found, it is highly unlikely a juror saw the bottom of defendant's boot. Finally, because defendant did not raise this issue on direct appeal, the matter is arguably barred as grounds for PCR review. See R. 3:22-4.

1 Defendant also claimed his trial counsel should have interviewed and called as witnesses two police detectives regarding defendant's alleged limp before the start of the trial. Judge Perfilio found this issue had no bearing on the fairness of the trial nor on defense counsel's performance.