STATE OF NEW JERSEY v. MUSTAFA A. BRAXTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUSTAFA A. BRAXTON,

Defendant-Appellant.

______________________________________________________________

July 22, 2014

Submitted July 8, 2014 - Decided

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. 05-12-1374.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals the denial of his post-conviction relief (PCR) petition. We find no merit in his arguments and affirm.

At the conclusion of a two-day jury trial in August 2006, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three). On November 2, 2006, following an appropriate merger of count two into count one, defendant was sentenced on the latter to a ten-year prison term, subject to an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; a concurrent three-year prison term was imposed on count three.

Defendant appealed, arguing only that the verdict was against the weight of the evidence. Because defendant failed to move for a new trial, see R. 2:10-1, we rejected his argument and affirmed. State v. Braxton, No. A-3932-06 (App. Div. June 17, 2008). The Supreme Court denied defendant's petition for certification. 196 N.J. 596 (2008).

On November 2, 2011, defendant filed a pro se PCR petition, which was amended once counsel was appointed. Defendant's attorney argued that trial counsel was ineffective: (1) "for coercing [him] not to testify"; (2) "for failing to request that the court give a cross-racial identification charge to the jury"; (3) for "fail[ing] to do any investigation prior to trial and as a result fail[ing] to call favorable witnesses"; (4) "in failing to interpose a diminished capacity defense"; and (5) "in failing to argue that the verdict was against the weight of the evidence." Defendant's PCR counsel also claimed that defendant's appellate counsel was ineffective for failing to argue in the direct appeal that trial counsel was ineffective. And defendant argued on his own behalf at oral argument that the sentence was unlawful.

For reasons set forth in a thorough oral opinion, Judge Joseph P. Donohue, who also presided over the trial, rejected all defendant's arguments and denied the PCR petition. He found no merit in the first argument because he had questioned defendant during the course of the trial about his decision not to testify, and he found no merit in the cross-racial identification argument because the witnesses that identified defendant were of the same race. The judge also rejected the third argument; he noted that defendant called alibi witnesses and did not identify in his PCR petition other witnesses he believes would have been helpful at trial. The judge rejected the fourth argument regarding the failure to present a diminished capacity defense because defendant failed to provide support for such a contention. In addition, the judge rejected the fifth argument because, even if defendant had moved for a new trial, he would have been required to deny the motion because there was sufficient evidence adduced at trial to support defendant's conviction.

Defendant's pro se argument regarding the alleged unlawfulness of the sentence was based on his contention that the dismissal during the course of the trial of a fourth count (for aggravated assault by pointing a firearm at another, N.J.S.A. 2C:12-1(b)(4)) precluded a finding of armed robbery. The judge explained, however, that it was not necessary there be evidence that defendant actually pointed a firearm at the victim to support the first count. And the judge rejected the arguments regarding the alleged ineffectiveness of appellate counsel, correctly observing that those arguments were not precluded by the failure to argue them on that earlier occasion; instead, as we observed in disposing of the direct appeal, defendant was free to argue ineffective assistance by way of a PCR petition. Braxton, supra, slip op. at 4. Indeed, the judge considered the ineffective assistance contentions on their merits and did not conclude they were barred by defendant's failure to raise them on direct appeal. Consequently, as Judge Donohue recognized, defendant was not prejudiced by appellate counsel's failure to argue ineffectiveness in the direct appeal.

The order denying relief was entered on June 22, 2012. Defendant filed a timely appeal, arguing:

I. THE [PCR] COURT FAILED TO VIEW THE FACTS IN THE LIGHT MOST FAVORABLE TO DEFENDANT IN DETERMINING THAT DEFENDANT WAS NOT ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFEC[T]IVENESS OF COUNSEL.

A. Defendant Was Denied the Effec-tive Assistance of Trial Counsel.

1. Trial Counsel's Fail-ure to Investigate and Prepare for Trial Con-stituted Ineffectiveness of Counsel.

2. Trial Counsel's Refu-sal to Permit Defendant to Testify Constituted Ineffectiveness of Coun-sel.

3. Trial Counsel's Fail-ure to Move for a New Trial on the Basis that the Verdict was Against the Weight of the Evi-dence Constituted In-effectiveness of Coun-sel.

4. Trial Counsel's Fail-ure to Move for an Ad-journment to Permit De-fendant to Utilize his Attorney of Choice at Sentencing Constituted Ineffectiveness of Coun-sel.

B. Defendant was Denied the Effective Assistance of Appellate Counsel.

1. Appellate Counsel's Failure to Raise the Issue of Trial Court Refusal to Grant a One Day Continuance at Sen-tencing Constituted In-effectiveness of Coun-sel.

2. Appellate Counsel was Ineffective Insofar as he Failed to Raise Ineffectiveness of Trial Counsel as an Issue.

II. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (Not Raised Below).

We affirm substantially for the reasons set forth by Judge Donahue in his cogent and well-reasoned oral decision. And we find insufficient merit in the arguments that were not raised in the trial court to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.