STATE OF NEW JERSEY v. COREY MORRIS

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-5057-10T3

A-1705-11T2

 

 

 

 

 

 

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

 

COREY MORRIS,

 

Defendant-Appellant.

 

 

 

Argued Telephonically December 17, 2013

Decided February 4, 2014

 

Before Judges Reisner, Ostrer and Carroll.

 

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos.

02-10-1464 and 02-12-1658.

 

Jennifer L. Gottschalk argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Richard Sparaco, Designated Counsel, on the brief).

 

Al Garcia, Assistant Prosecutor in A-5057-

10, and Michael A. Nardelli, Assistant Prosecutor in A-1705-11, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Garcia, on the brief; Mr. Nardelli, of counsel and on the brief).

 

Appellant filed pro se supplemental briefs.

PER CURIAM

 

DefendantCoreyMorrisappealsfromtwoorders,both dated May13,2011,denyinghispetitions forpost-convictionrelief (PCR)arisingfrom twoseparate robberyconvictions(Indictment No.02-10-1464andIndictmentNo.02-12-1658).1 InA-1705-11,he amendedhis notice of appealto include a November 28, 2011 amended judgmentof conviction, reflecting hisre-sentencing on IndictmentNo.02-12-1658. Weconsolidated the appealsfor purposesof this opinion. We affirmonboth appeals, substantially for thereasonsstated by JudgeEdward M. Neafsey, in hisoral opinionissuedonMay13,2011, andforthereasons statedby JudgeThomasBrown at the re-sentencing hearingon November 4, 2011.

I.

 

We begin byaddressingtheappeal inA-5057-10,which corresponds to Indictment No. 02-10-1464. In this case, defendantwasconvictedofrobbingasixty-year-oldmannamed

Joseph Spivak on July 11, 2002. Defendant was tried and

 

 

1ThePCRcourtheardoralargumentonbothpetitionsonMay13,

2011,butissuedaseparateorderoneachpetition. While denying both petitions, the judge reserved decision on a separatesentencingissueconcerning theimpositionof asecond extended termonIndictment No. 02-12-1658. On August 17, 2011, he orderedthatdefendantbere-sentencedonthatindictment. The parties provided us with theAugust 17, 2011order, but did not provide us with the transcript of the judge's statement of reasons.

 

convicted in October 2003. Thetrial evidence can be summarized briefly. A taxi cab driver witnessedthe robbery as it was occurring. The cab driver followed defendantuntil he entereda car. Atthatpointthecabdrivercalledinthecar's descriptionandlicenseplatenumber to the police, followed the vehicleuntilhesawthepolicecararriving,andthenblocked in thevehiclewithhis taxitopreventdefendant'sescape. The policeimmediately arresteddefendantand acompanion,Cynthia Bazil, who wasdriving the vehicle. Thetaxi driver identified defendantto thepolice,andalsoidentified himattrialasthe robber. Spivaklikewiseidentifieddefendantastherobber, bothshortlyafterthearrestandattrial. Afterwaivinghis

Miranda2 rights,defendantconfessed,andhisconfessionwas

 

introduced at his trial. Bazil also testified against him.

Defendantinsistedonwearingjailgarbathistrial. He was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and

 

third-degreetheftbyunlawfultaking,N.J.S.A.2C:20-3,andon

 

December12,2003,hewassentencedasapersistentoffenderto a sixteen-year extended prison term, subject to the No Early

ReleaseAct, N.J.S.A.2C:43-7.2.

 

 

 

2 Mirandav.Arizona,384 U.S. 436,86 S. Ct. 1602,16L.Ed.2d

694 (1966).

On his direct appeal, defendant raised the following issues:

POINTI-DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSEHIS INVOLUNTARYCONFESSIONS VIOLATEDTHEFOURTEENTHAMENDMENT OF THE UNITED STATES CONSTITUTION.

 

POINTII-DEFENDANT'SSENTENCEMUST BE VACATEDAND THISMATTER MUSTBEREMANDED FOR RESENTENCINGBECAUSETHESENTENCEVIOLATED THESIXTHAND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. (Not Raised Below)

He raised these additionalarguments ina pro sebrief: POINTI-THECOURTCOMMITTEDTRIALERRORS

THATVIOLATEDAPPELLANT'SFEDERALANDSTATE

CONSTITUTIONALRIGHT TO A FAIRTRIALTHUS REQUIR[ING]THE CONVICTIONTO BEREVERSE[D].

 

A. TheCourtErred By Not[Conducting]Voir Dire, Giv[ing] Instruction And Charging The Jurors To Not Form An Opinion Of Guilt Based On ThePrison'sClothesTheAppellantWore At Trial.

 

B. TheCourt'sCharge And The Verdict Sheet DidNotIncludeWhat ConstitutesAViolent Crime [And] Thus Violated TheAppellant's Right To A Fair Trial.

We affirmed his conviction, but remanded for re-sentencing pursuant to Statev.Natale, 184 N.J. 458 (2005). Statev.

 

Morris, Docket No. A-3961-03 (App. Div. Aug. 23, 2005). On

 

remand,thetrialcourtimposedthesamesentenceonSeptember

 

8, 2006.

Defendantdidnotappealfromthatsentence. However,he filed a PCR petition, which was supplemented by his assigned PCR attorney. Inhis PCRpetitionand supplementalbrief,defendant claimed, on multiple bases, thathistrial attorney had rendered ineffective assistance of counsel. In a certification accompanyingthepetition,defendant addressed onlyoneof those issues. Heattestedthathistrialcounselfailedtodiscuss with himthecourt'soffertoinstructthejurythat neither defendant's prison attire nor his Public Defender representation shouldbeconsideredasindiciaofhisguilt. Atthetrial, defensecounselwaivedthoseinstructions,reasoningtothe judgethattheywould merelycall additionalattention to the issues. Inhiscertification,defendantcontendedthatifhis attorneyhaddiscussedthematterwithhim,hewouldhave insisted that the judgegive theproposed instructions.

After hearing oral argument from counsel, and permitting

 

defendant to present argument, Judge Neafseyplacedaforty-four page oral opinion on therecord,addressingeachof defendant's PCRcontentions. Wewillnot repeathisopinionhere. However, amongotherarguments,herejecteddefendant'sassertionthat hiscounseldidnotadvise himof "the maximumconsecutive sentencesthathewasexposedto"ifconvicted. Quotingthe pre-trial and trial transcripts, Judge Neafsey found that

defendant's trialcounseland thetrialjudge hadboth advised defendantthathefaceddecadesofprisontimeinthiscaseand in the other pending robbery indictment, and that he couldavoid thatriskbytakingtheState'soffer ofconcurrentfive-year termstoresolvebothcases. Defendantrepeatedlyrefusedthe plea offer andinsistedon goingto trial. Judge Neafsey found thatfurtheradviceonthesubjectwouldhavebeenfutile becausedefendant was determinedto go to trial.

JudgeNeafseyfoundthattrialcounselwasnotineffective

 

infailingtoaskforaWade3 hearing,becausetherewasno

 

evidencethat thewitnesses'identificationsweretheresult of suggestive police procedures. He also foundthat trialcounsel vigorously cross-examined Bazil,and that the prosecutor brought outherpriorcriminalrecordondirectexamination. Hefound that the trial court did notimproperlydenydefendant's motion foran acquittal,because theevidenceofhisguiltwas overwhelming.

Judge Neafsey found that defendant rejected the trial

 

judge'soffertoprovidehimwith civilianclothing and insisted on wearingjailgarb. JudgeNeafseyfoundthattrialcounsel's

decisionnottorequestajuryinstructiononthejailgarbwas

 

 

 

3UnitedStatesv.Wade,388 U.S. 218,87 S. Ct. 1926,18L.Ed.

2d 1149(1967).

sensible,since,astheattorneynoted,theoutfitwastanand thejurorsmightnotrealizeitwasajailuniform. Hadthe trialjudgegiven an instruction,it would have drawntheir attention todefendant'sclothing. JudgeNeafseylikewisefound thatdefensecounselexercisedreasonablejudgmentindeclining a jury instructionconcerningthefact thatdefendant was representedby a PublicDefender.

JudgeNeafsey furtherconcludedthat trialcounsel wasnot ineffectiveinfailingtoobjecttotheState'srequestto comparedefendant's heighttothe victim'sheight. He concluded that thecomparison wasrelevant to showthatthevictim accuratelyrecalledthattherobberwastallerthanhewas. Hence,anobjection,evenifmade,wouldhavebeenoverruled. He foundthatdefendant'sspeedytrialmotionwasproperly denied, and therefore, appellatecounsel was notineffective in failingto raisethe issue on appeal. Judge Neafsey also found that on January31, 2003, the trial judge thoroughly questioned defendantonhisrequesttorepresenthimselfandproperly denied thatapplication.

On thisappeal, defendant raisesthe following arguments:

 

POINTI-THEDEFENDANTWASENTITLEDTO POST-CONVICTIONRELIEFWHERETRIAL COUNSEL FAILED TO EXPLAIN TO HIM THE FULL PUNITIVE CONSEQUENCES OF REFUSING THE PLEA OFFER SHOULD THE CASE RESULTINTRIALAND CONVICTION.

POINTII-TRIAL COUNSEL FAILED TO ADVISE DEFENDANT OF THE THREE-YEAR PAROLE SUPERVISION REQUIREMENT PURSUANT TO THE NO EARLYRELEASEACTONINDICTMENTNUMBER02-

10-1464 AND INDICTMENT NUMBER 02-12-1658

WHICH IN THE AGGREGATE AMOUNTED TO SIX YEARS.

 

POINTIII-TRIAL COUNSELWASINEFFECTIVEIN FAILINGTOOBJECTTOTHESTATE'SREQUESTFOR ACOMPARISONOFDEFENDANT'S HEIGHT WITH THAT OF THE VICTIM'S.

 

POINTIV-TRIAL COUNSEL WASINEFFECTIVE BECAUSEHE FAILEDTO REQUESTTHATTHECOURT CHARGETHEJURYTO NOTFORMANOPINIONOF GUILTDUETOTHEREPRESENTATIONOF THE DEFENDANT BY THE OFFICEOFTHEPUBLIC DEFENDER.

 

POINTV-TRIALCOUNSELFAILEDTOREQUEST THATTHECOURTCHARGETHEJURYTONOTFORM AN OPINION OF GUILT DUE TO THEPRISON GARB WORN BYTHEDEFENDANT.

 

POINTVI-TRIALCOUNSELFAILEDTOPROVIDE THE COURT WITHA SUPPLEMENTAL LIST OF VOIRDIREQUESTIONSREGARDINGTHEUSEOFCDSBY THE DEFENDANT.

 

POINTVII-TRIAL COUNSELWASINEFFECTIVEIN THATHE FAILED TO IMPEACHTHECREDIBILITYOF WITNESS BAZIL BASED UPON HER CRIMINAL RECORD.

 

POINTVIII-APPELLATECOUNSELFAILEDTO ARGUETHETRIALCOURT'SERRORIN DENYING DEFENDANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.

 

POINTIX- BECAUSETRIALCOUNSELPROVIDED INEFFECTIVEASSISTANCEOFCOUNSEL,AND THE DEFENDANTWASPREJUDICED THEREBY, THECOURT SHOULD HAVE GRANTEDHISPETITIONFORPOST- CONVICTION RELIEF; IN THE ALTERNATIVE, BECAUSETHEDEFENDANTPRESENTEDPRIMAFACIE

EVIDENCETHATHE HADBEEN DEPRIVEDOF EFFECTIVEASSISTANCEOF COUNSEL,THECOURT SHOULD HAVEGRANTED HIM ANEVIDENTIARY HEARING.

 

POINT X - THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS ASSERTION THAT DEFENSE COUNSEL WAS INEFFECTIVE IN HIS FAILURETO FILEAWADEMOTIONTO EXCLUDE EVIDENCE OF THE OUT OF COURT IDENTIFICATION.

 

POINT XI - POST-CONVICTION RELIEF WAS REQUIREDBECAUSEOF THECUMULATIVE EFFECT OF THEERRORSANDTHE INEFFECTIVENESS SETFORTH IN POINTS I THROUGH X.

 

In a supplemental pro se brief, defendant raises these additionalarguments:

POINTI -THE DEFENDANT'SRIGHTTODUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTHAMENDMENTTOTHEUNITED STATESCONSTITUTIONANDART. I [ ] 1 OF THENEWJERSEY CONSTITUTIONWASVIOLATEDBY THEPCR COURT'S REFUSALTO HOLD A POST-CONVICTION RELIEFHEARINGTO ADJUDICATE THEDEFENDANT'S CLAIM THAT HE WAS DENIED EFFECTIVE ASSISTANCEOF COUNSEL.

 

A. Appellate

Counsel

Rendered Ineffective

Assistance Of

Counsel

By Failing To Order

The Pre-Trial

Hearing

Transcript To Decide

ProSeSelf-RepresentationProceedingsAnd

CounselFailed ToRaiseTheErrorOn Direct Appeal. It Was An Error For The Court To Not Allow The Defendant To RepresentHimself.

 

B. TrialCounselWasIneffective ForNot PresentingDefendantWithAllThe Material Information He NeededIn MakingHisDecision To Testify Or NotTestify,I.E.,Counsel Failed To AdviseDefendant Of His Right To TestifyAndCallHimAsAWitnessAtThe Pre-Trial Miranda Hearing Was Not A

Meaningful Decision Made By Him Not To

Testify.

 

C. TrialCounselWasIneffectiveForFailing To Subpoena A Crucial Defense Witness, Police Officer Lieutenant JosephG. Valdona.

 

D. Trial Counsel Failed To Challenge N.J.S.A.2B:12-21(b)Regarding The Administration Of The Oath.

 

E. TrialCounselFailed ToSuppress The Defendant'sStatementAsInvoluntary DueTo The FactThatThe PolicePromised To Release Him On RORBail. (Not Raised Below)

 

POINTII-THE PROSECUTORENGAGEDIN MISCONDUCT.

 

POINTIII-THEPROCEDURALBARTORELIEF

UNDER RULE 3:22-4 SHOULD

NOT

APPLY

TO

APPELLANT'S CLAIM UNDER POINT

II.

 

Having reviewed the record, we conclude that these contentions arewithoutsufficientmerittowarrantdiscussion

inawrittenopinion. R.2:11-3(e)(2). Weaddthefollowing

 

comment.

 

Afterreadingthe trial transcript,we agreewith Judge Neafseythattheevidence ofdefendant'sguilt was overwhelming. Moreover, most ofdefendant's PCRcontentions areattemptsto present,intheguiseofineffectiveassistanceofcounsel,

argumentsthatarebarredbyRule3:22-4orRule3:22-5,because

 

theyeithercouldhavebeenraisedondirectappealorwere raisedon appealandrejected. Nonetheless,JudgeNeafsey carefully considered, and properly rejected, defendant's

arguments on themerits. Wefindno basistodisturbhis well- reasoned decision andweaffirmthedenialofdefendant'sPCR petition.

II.

 

We nextaddressdefendant'sappeal in DocketNo.A-1705-11, whichcorresponds toIndictmentNo. 02-12-1648. Thiscase arose from therobberyof aseventy-year-olddisabledvictim,Andrew Keresztury,onApril12,2002. Asinthecompanioncase,the proofs against defendant were overwhelming.

Atthetrial,whichtookplaceinMarch2004,Keresztury

 

testified thatthe robberassaultedhimand stoleablackfanny pack. The police recovered the pack when they arrested defendant,andKereszturyidentifiedthepackforthejuryat thetrial. Apassingmotorist,whowitnessed therobbery, testifiedthatheyelledattherobbertoleavethevictim alone, and theassailantranaway. However,upondrivinghome, this eyewitnesssawtherobberenterahousenextdoor tothe witness'shome. Theeyewitnessthentoldthepolice,whohad beenchasing defendant,wheretofindtherobber. Afewmoments later,theeyewitnesssawthepolicebringingdefendantoutof the house.

TheStatealsopresentedevidencefromapoliceofficerwho

 

sawtherobberyasitoccurred,andchaseddefendantuntilhe

lost sight of him. The officer testified that the civilian eyewitness thentold him that the defendant had entereda nearby houseand, on entering thathousewith hispartner,theofficer found defendantand arrested him. The partner testified thathe recoveredthevictim'sfannypackintheroomwheredefendant wasarrested. Theownerofthehousewheredefendantwas arrestedtestified thatshedidnotknowhimandhe didnothave her permission to enterthepremises.

In histrialtestimony,defendantdeniedanyinvolvementin therobbery. Heclaimedhewasadrug dealerandhe happenedto beinthevicinityoftherobberybecauseitwasahighdrug sale area, andheintended to sell marijuana there. Evidently, the jury was unimpressed with that testimony.

Defendantwasconvictedofsecond-degreerobbery,theft from theperson,resistingarrest, andcriminaltrespass. After merger, he wassentenced to anextended term of twenty years, subject to NERA,on the robberyconviction, consecutive to the extendedsentencepreviouslyimposedontherobberyconviction inIndictmentNo.02-10-1464. Hereceivedlesser,concurrent terms for trespass and resistingarrest.

On defendant's direct appeal, we affirmed the conviction

 

andremandedthesentence. Statev.Morris,DocketNo.A-0695-

 

04 (App. Div. Feb. 10, 2006), certif.denied, 186 N.J. 605

(2006). Inouropinion(slipop.at2-3),wesummarizedthe appellate issues,andourdetermination of thoseissues, as follows:

On appeal, defendant challenges his

convictions, claiming his involuntary absencefromthecourtroomduringportions of the jury selection and thebeginning of trial violatedhis stateand federal constitutionalrights. Healsochallenges hissentenceasexcessive,arguing thetrial courtfailedto recognizeappropriate mitigatingfactors andabusedits discretion in imposinganextendedterm. Defendant further contends the court violated the Sixth and Fourteenth Amendments of the United StatesConstitutionbyimposinga sentence above the then-presumptive statutory termsolely onthefindingof aggravatingfactors otherthandefendant's criminalrecord. We affirmdefendant's conviction, but remand for resentencing in lightofApprendiv.NewJersey,530U.S.

466, 120 S. Ct. 2348,l47 L. Ed. 2d 435 (2000),Blakelyv.Washington,542 U.S. 296,

124 S. Ct. 2531,159L.Ed.2d403(2004)

andStatev. Natale,184N.J.458(2005) (NataleII).

 

On remand,thetrialcourt imposedthesamesentence. Defendant onceagain appealed. We heard the appeal on an excessivesentencecalendarandremandedasecondtimefor

resentencingpursuanttoStatev.Pierce,188N.J.155(2006).

 

Statev.Morris, No. A-1228-06 (App. Div. May 1, 2008). On

March3,2006,thetrialcourtagainre-imposedthetwenty-year

 

NERA extended term sentence.4

 

DefendantfiledaPCRpetitioninDecember2008. Inhis petition, defendantasserted a plethora of arguments concerning histrialcounsel'sallegedineffectiveassistance. Defendant alsoasserted a litany of allegedlyincorrect decisionsbythe trialcourt,includingerroneousevidentiaryrulingsanderrors in denying various defense motions made prior to andduring the trial. In support of the PCR, defendant submitted a certification assertingthat trial counselfailedto advise him concerningtheextentofhissentencingexposureifconvicted, andassertingthat,haddefendantknowntheamountofprison time he faced ifconvicted, he would have accepted the State's five-year plea offer.

Inalengthyoralopinion,alsoplacedontherecordonMay

 

13,2011,JudgeNeafseyrejecteddefendant'sPCRarguments. Again,wewillnotrepeathisentireopinionhere. However, among otherrulings, he found that bothdefendant's counseland the trialjudgeadviseddefendantof"thepenalconsequencesof

goingtotrial." CitingStatev.Taccetta,200N.J.183,195-96

 

(2009), the judge further reasoned that because defendant

 

 

4 ThepartiesdidnotprovidetheJOCthatresulted