STATE OF NEW JERSEY v. LEONARD ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0919-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD ROBINSON,

Defendant-Appellant.

________________________________________________________

October 26, 2012

Submitted October 10, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-06-1264.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D.Brater, SpecialDeputy AttorneyGeneral/Acting AssistantProsecutor, ofcounsel and on the brief).

PER CURIAM

Defendant appeals the denial of his post-conviction relief (PCR) petition. We affirm.

At the conclusion of a three-day trial before Judge Patricia Del Bueno Cleary in 2007, defendant was convicted of: third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); first-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5(b)(1); and second-degree CDS possession with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1. On April 5, 2007, Judge Cleary merged the third-degree conviction into the first-degree conviction as to which she sentenced defendant to a twenty-two year prison term, subject to eleven years of parole ineligibility; a concurrent ten-year prison term, with five years of parole ineligibility, was imposed on the second-degree conviction.

Defendant appealed, arguing: he was denied a fair trial as a result of "testimony gratuitously volunteered by a police officer constituting inadmissible hearsay which connected the defendant with prior criminal conduct"; he was denied a fair trial because testimony from a police officer referred to defendant's alias; and the trial judge erred in ruling that all defendant's prior convictions were admissible to attack his credibility. Defendant also claimed entitlement to a remand for a determination of the State's reasons for seeking an extended term and asserted that the sentence imposed was manifestly excessive. We found no merit in these arguments and affirmed by way of an unpublished opinion. State v. Robinson, No. A-6232-06 (App. Div. Jan. 16, 2009). The Supreme Court denied certification. 199 N.J. 129 (2009).

Defendant filed his PCR petition on December 26, 2009. He argued in the trial court that his appellate counsel had been ineffective in failing to raise issues on appeal regarding the voluntariness of his statements to police and the denial of his suppression motion; he also argued that his trial attorney failed to take appropriate steps regarding the absence of minorities on the jury. In a thorough and thoughtful oral decision denying the PCR petition, Judge Jamie S. Perri determined that defendant's arguments were not time-barred but that they lacked merit.

Defendant appeals the denial of his PCR petition, arguing:

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

II. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

III. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDUALLY BARRED UNDER R. 3:22-4.

V. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We need not consider Points III and IV because the PCR judge did not determine that defendant's arguments were time-barred. We reject Points I, II and V -- insofar as they reprise the arguments advanced by defendant regarding the PCR petition -- substantially for the reasons expressed in Judge Perri's opinion. It is true, as Judge Perri observed, that appellate counsel did not challenge in the direct appeal the trial court determinations regarding the voluntariness of defendant's statements and the search and seizure that occurred. We need not determine whether appellate counsel's failure to make those arguments was consistent with professional norms because, as Judge Perri correctly determined, this court would have deferred to Judge Cleary's factual findings on those issues, see, e.g., State v. Locurto, 157 N.J. 463, 470-71 (1999), and affirmed the denial of the applications to suppress defendant's statements and the evidence seized from defendant's apartment. In other words, we need not address defendant's arguments regarding the first prong of the Strickland/Fritz1 ineffectiveness test because the record abundantly demonstrates that defendant failed to carry his burden on the second prong. We also find that defendant's argument regarding the absence of minorities from the jury that found him guilty is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We further observe that defendant has raised additional arguments in Point II that were not presented in the trial court, namely, his contentions regarding:

(1) trial counsel's failure to object when defendant was cross-examined regarding the number of times he had "delivered drugs/cocaine" and the absence of a hearing regarding these other alleged bad acts pursuant to N.J.R.E. 404(b);

(2) the absence of live testimony from a laboratory technician identifying seized substances as cocaine;

(3) the State's failure to turnover, in discovery, material evidence regarding an ongoing investigation initiated months before defendant's arrest;

(4) his entitlement to a new trial because the indictment allegedly was not signed;

(5) his claim that he was convicted through perjured police testimony.

Because these arguments were not presented to the PCR court, we decline to entertain them now. State v. Robinson, 200 N.J. 1, 20 (2009).

1Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).