Opinion
DOCKET NO. A-3082-14T1
03-10-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARTY ALSTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the briefs). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Messano and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-02-0263. Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the briefs). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Marty Alston appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant claims his trial and appellate counsel were ineffective.
Tried to a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3(a); first-degree kidnapping, N.J.S.A. 2C:13-1(b); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On February 1, 2008, defendant received an aggregate seventeen-year sentence, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed and challenged the admission of 911 emergency calls; the trial court's failure to remove a juror during trial; the prosecutor's comments during cross-examination and summation; the trial court's denial of defendant's motion to suppress; and defendant's sentence. We affirmed, State v. Alston, No. A-4671-07 (App. Div. July 21, 2010), and the Supreme Court denied defendant's petition for certification, 205 N.J. 77 (2011).
In April 2012, defendant filed a pro se PCR petition. After counsel was assigned, a brief was filed in support of the petition. Defendant filed a pro se supplemental letter brief in May 2013. After defendant's assigned counsel was relieved due to a conflict of interest, substitute PCR counsel submitted a letter brief.
On September 19, 2014, Judge Pedro J. Jimenez, Jr., heard oral argument. On September 25, 2014, Judge Jimenez entered an order denying the petition accompanied by a written decision.
On appeal, defendant raises the following points:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
POINT II
DEFENDANT'S CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND A FAIR TRIAL WAS DENIED WHEN THE COURT CONDUCTED AN IN CAMERA PROCEEDING TO ADDRESS POSSIBLE JUROR BIAS INITIATED BY A NOTE FROM A JUROR.
A. THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO PRESERVE JUROR ONE'S NOTE AND INVOLVE DEFENDANT IN THE IN CAMERA PROCEEDING.
B. TRIAL COUNSEL'S FAILURE TO INFORM DEFENDANT OF JUROR ONE'S NOTE, THE IN CAMERA PROCEEDING AND TO OBJECT TO THE PRESENCE OF SUCH A CLEARLY
BIASED JUROR RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL.
C. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PERFORM NECESSARY LEGAL STEPS BOTH BEFORE AND DURING THE TRIAL, AND THEREFORE, DENIED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO PRESERVE THE AUDIOTAPES OF THE 911 CALLS AND TO INVESTIGATE THE CALLERS.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY ADDRESS THE LOSS OF CERTAIN STATE EVIDENCE.
C. TRIAL COUNSEL FAILED TO PROPERLY ADDRESS INNOCUOUS ITEMS FOUND IN THE VAN THAT WERE PORTRAYED AS WEAPONS BY THE STATE.
D. TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL RELEVANT WITNESSES TO SUPPORT THE DEFENSE RESULTING IN INEFFECTIVE ASSISTANCE OF COUNSEL.
E. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR SEVERANCE.
F. TRIAL COUNSEL FAILED TO PROVIDE DISCOVERY TO DEFENDANT.
We find no merit to these arguments and affirm on the basis of Judge Jimenez's thorough and thoughtful decision. We add only the following brief comments.
We agree with Judge Jimenez that defendant challenged the admission of computer-aided dispatch summaries of the 911 calls on his direct appeal and is now barred from attempting to relitigate that issue by Rule 3:22-5, which states:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.
Similarly, the issues surrounding jurors number one, two, and twelve were thoroughly reviewed and we concluded the incidents involving the three jurors, "either singly or in combination, provide no basis to reverse defendant's convictions." State v. Alston, supra, slip op. at 21.
We are satisfied that Judge Jimenez correctly determined that defendant failed to present a prima facie claim of ineffective assistance and was not entitled to an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION