Opinion
DOCKET NO. A-3381-13T2
06-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LOC VAN NHAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-08-2452. Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Loc Van Nhan appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
In August 2008, a grand jury in Camden County indicted defendant on charges of first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and four other assault and weapons offenses. Defendant was tried before a jury and Judge Samuel Natal in September 2009. The jury convicted defendant on all six counts of the indictment.
At defendant's sentencing on November 13, 2009, Judge Natal merged several counts and sentenced defendant to seventeen years imprisonment on the first-degree robbery charge, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent sentence of eighteen months imprisonment on a weapons offense. We affirmed the conviction and sentence on direct appeal, State v. Loc Van Nhan, No. A-2428-09 (App. Div. Mar. 5, 2012), and the Supreme Court denied defendant's petition for certification, State v. Loc Van Nhan, 212 N.J. 105 (2012).
The facts of the case are recited in our decision on direct appeal, State v. Loc Van Nhan, supra, slip op. at 3-11, and will not be repeated here. Briefly stated, defendant attacked and robbed a sixty-nine-year-old Vietnamese immigrant who had previously provided housing to him and his wife. While the victim was outside tending to her garden, defendant struck her in the head repeatedly with a garden tool and then took her money. The victim's skull and several facial bones were fractured, and her recovery required in-patient treatment in a hospital for one-and-a-half months.
The primary defense at trial was mistaken identification of the assailant. The jury heard testimony, however, that defendant and the victim had known each other for about ten years before the crimes, and it accepted the victim's identification of defendant as her assailant. Among the several issues raised on direct appeal, defendant's appellate counsel also challenged the evidence and jury instructions related to identification. We considered those arguments and found no reversible error.
In his pro se PCR petition filed on March 24, 2013, defendant claimed ineffective assistance of his trial attorney both for allegedly failing to investigate an alibi defense on his behalf and for deficient performance during the trial. Counsel was appointed to represent defendant for his PCR petition and filed a brief on November 12, 2013, supplementing defendant's contentions. Much of counsel's argument was that trial counsel had been ineffective in challenging the identification testimony of the victim and in failing to seek dismissal of the charges for lack of sufficient identification evidence.
After hearing oral argument, Judge Natal issued a written opinion dated January 23, 2014, in which he analyzed and rejected all of defendant's and counsel's contentions.
On appeal, defendant argues:
POINT I
THE PCR COURT IMPROPERLY DENIED MR. NHAN'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING, WHERE MR. NHAN HAD ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD SUCCEED ON THE MERITS.
A. Petitioner Was Denied His Constitutional Right to Effective Assistance of Counsel Where Counsel Failed to Confront the Only Eyewitness with Discrepancies in Her Testimony and Prior Statements to Police.
B. Mr. Nhan Was Denied Effective Assistance of Counsel Where Counsel Failed to Adequately Prepare for Trial by Interviewing the Eyewitness or Requesting a N.J.R.E. 104 Hearing to Establish the Basis of Her Identification.
C. Mr. Nhan Was Denied Effective Assistance of Counsel Where Trial Counsel Failed to Move for a Judgment of Acquittal for Lack of an In Court Identification of Mr. Nhan as the Person Who Attacked T.T., and Counsel Failed to Object to Jury Instructions Regarding an In Court Identification.
Having reviewed the record, we conclude that defendant's arguments are without sufficient merit to warrant discussion in another written opinion. R. 2:11-3(e)(2). We affirm the denial of defendant's PCR petition for the reasons stated in the thorough and well-reasoned written decision of Judge Natal dated January 23, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION