JERSEY STATE OF NEW JERSEY v. RAHEEM M. HAYES

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APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHEEM M. HAYES,

Defendant-Appellant.

_______________________________

November 2, 2016

 

Submitted October 25, 2016 Decided

Before Judges Reisner and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0858.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (John J. Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Raheem Hayes appeals from a February 27, 2015 order denying his petition for post-conviction relief. We affirm, substantially for the reasons stated by Judge Bernard E. DeLury, Jr., in his comprehensive written opinion dated February 27, 2015. We add these comments.

The case history and the trial evidence were detailed in Judge DeLury's opinion and in our opinion deciding defendant's direct appeal. State v. Hayes, A-4984-10 (App. Div. April 15, 2013), certif. denied, 216 N.J. 14 (2013). In summary, the victim was lured to an apartment in a rooming house, at the invitation of a woman acquaintance. When the victim arrived, two men emerged from the bathroom and robbed him at gunpoint. Defendant and his co-defendant, Tysheim Murphy, were arrested shortly after the robbery, and the victim identified them as the robbers.

Defendant was convicted of first-degree armed robbery N.J.S.A. 2C:15-1, and associated offenses, and was sentenced to sixteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On his direct appeal, defendant presented the following arguments

I. THE TRIAL JUDGE ERRED IN FAILING TO PROPERLY ADDRESS, THROUGH ADEQUATE INSTRUCTIONS TO THE JURY, THE HEIGHTENED "DANGER BY ASSOCIATION" CREATED BY THE DIFFERENT TRIAL STRATEGIES THAT HAYES AND MURPHY PURSUED AND EVIDENCE ADMITTED AGAINST MURPHY THAT HAD NO PROBATIVE VALUE AS TO HAYES'S GUILT. THE RESULTING PREJUDICE TO HAYES WAS MAGNIFIED WHEN THE PROSECUTOR IN SUMMATION REPEATEDLY SUGGESTED THAT EVIDENCE ADMITTED AGAINST ONLY MURPHY WAS PROOF THAT HAYES WAS GUILTY. (Not Raised Below)

II. THE PROSECUTOR'S UNINVITED REMARKS IN SUMMATION, WHICH IMPROPERLY DENIGRATED HAYES'S TESTIMONY AND DEFENSE, REQUIRES REVERSAL OF HAYES'S CONVICTIONS. (Not Raised Below)

III. THE TRIAL COURT ERRED IN IMPOSING A SIXTEEN-YEAR "NERA" SENTENCE FOR FIRST-DEGREE ROBBERY, WHERE HAYES HAD NO PRIOR CRIMINAL CONVICTIONS, THE ONLY AGGRAVATING FACTORS WERE THREE, SIX AND NINE, AND, ACCORDING TO THE VICTIM, HAYES'S OLDER CODEFENDANT WAS THE ONE "RUNNING THE SHOW." MOREOVER, THE SENTENCE APPEARS TO HAVE BEEN IMPROPERLY INFLUENCED BY THE COURT'S DISAGREEMENT WITH THE JURY'S DECISION TO ACQUIT HAYES OF CARJACKING AND KIDNAPPING.

We found no merit in those contentions and affirmed his conviction and sentence.

Defendant then filed a PCR petition, which Judge DeLury considered and rejected without an evidentiary hearing. The judge stated his reasons in a lengthy written opinion addressing each of defendant's PCR contentions. This appeal followed.

Defendant presents the following points of argument for our consideration

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

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

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AT SENTENCING AS A RESULT OF COUNSEL S FAILURE TO PRESENT A COGENT ARGUMENT DEMONSTRATING THE INAPPLICABILITY OF AT LEAST TWO OF THE THREE AGGRAVATING FACTORS SUBSEQUENTLY FOUND BY THE TRIAL COURT TO EXIST.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL S FAILURE TO ADEQUATELY COMMUNICATE WITH HIM, THUS PREVENTING HIM FROM ENTERING INTO A PLEA AGREEMENT RATHER THAN PROCEEDING TO TRIAL.

Except as addressed herein, those arguments are without sufficient merit to warrant discussion beyond that cogently set forth in Judge DeLury's opinion. R. 2:11-3(e)(2).

Renewing an argument presented for the first time at oral argument of the PCR petition, defendant contends that his trial counsel was ineffective in failing to obtain for him a plea agreement conditioned on truthful testimony against co-defendant Murphy. After reviewing the trial transcript as well as defendant's supplemental PCR submissions, it is clear to us that defendant was not willing to testify against his co-defendant.

In a September 29, 2008 letter to his trial attorney, defendant stated that he was willing to "cooperate," but not "while I'm in this county." In another letter to the Public Defender's Office, dated January 8, 2009, defendant complained that the prosecutor's office wanted his co-defendant to accept a plea bargain, but "Mr. Murphy wasn't with me in that event."

Moreover, at the trial, defendant testified that he did not know Murphy and never encountered Murphy on the day of the crime. Consequently, defendant's belated claim - that he would have testified against Murphy in return for a plea deal - amounts to an assertion that he would have perjured himself. See State v. Taccetta, 200 N.J. 183, 194 (2009). Moreover, at the sentencing, the prosecutor stated, without contradiction from defense counsel, that defendant could have obtained a plea deal if he had been willing to testify against Murphy, but defendant had refused to do so.

For the first time on appeal, defendant also contends that his trial counsel should have argued to the sentencing court that defendant's difficult childhood should have been considered as a mitigating factor. That information was before the sentencing judge in the pre-sentence report, and defendant's trial counsel referred to it in his sentencing argument. Defendant also contends that his trial counsel should have pointed out to the court that defendant's seventeen prior juvenile adjudications were not sufficiently serious to be considered as an aggravating factor. That contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.



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