Opinion
DOCKET NO. A-5112-11T4
07-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EMENDO HILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-00291.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was convicted by a jury of first-degree armed robbery, third-degree unlawful possession of a handgun, and second-degree possession of a firearm for an unlawful purpose. He now appeals from the denial of his petition for post- conviction relief (PCR) without an evidentiary hearing. Defendant argues he is entitled to relief based upon errors in the charge regarding accomplice liability and the omission of an instruction on theft as a lesser-included offense of robbery. We affirm.
In his direct appeal, defendant challenged his sentence of twelve years with an eighty-five percent period of parole ineligibility as excessive and argued that a remand was necessary to reassess jail credits. In addition, he alleged the trial court committed plain error in failing to charge the jury that, pursuant to State v. Harmon, 104 N.J. 189 (1986), it was a defense to the charge of possession of a weapon for an unlawful purpose if his alleged accomplice armed himself as a precaution against an attack by another. We affirmed his convictions, reversed the sentence, and remanded for resentencing. State v. Hill, No. A-4730-07 (App. Div. Nov. 8, 2010). He was resentenced to a ten-year term of imprisonment with an eighty-five percent period of parole ineligibility.
The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.
Defendant filed a pro se PCR petition on April 7, 2011, in which he argued (1) trial counsel was ineffective in not arguing for the judge to give the model jury charge on prior inconsistent statements; and (2) trial counsel was ineffective because he did not consult with the defendant regarding a defense that was relevant to the facts of the case, i.e., "if the facts support that neither threat nor theft is realized in a robbery then the crime should be one of attempt which is a second degree [offense]." Assigned counsel supplemented this petition with a certification in which defendant alleged the court erred in failing to give a "false in one, false in all" charge to the jury and that his attorney failed to provide effective assistance of counsel by failing to provide appropriate charges to the court, failing to address contradictions in the victims' statements, and failing to object to the charge. The PCR court denied defendant's petition by order dated March 13, 2012 and stated its reasons in an oral decision.
Defendant presents the following issues for our consideration in his appeal.
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE THE TRIAL COURT'S CHARGE WAS FLAWED BY MULTIPLE AND LENGTHY OMMISSIONS OF CRITICAL INSTRUCTIONS ON ACCOMPLICE LIABILITY WITH LESSER-INCLUDED OFFENSES, AND THE ERROR IN THE CHARGE DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
A. The Claimed Errors In The Charge Were Not Procedurally Barred Because The Erroneous Charge Deprived Defendant Of His
Constitutional Right To A Fair Trial.POINT II
B. The Charge Did Not Comply With State v. Bielkiewicz , State v._Ingram Or The Model Instructions, And Did Not Incorporate Any Facts Of The Case Into The Incomplete Statement Of Law Given To The Jury.
C. An Instruction Should Have Been Given On Theft As A Lesser-Included Offense Of Robbery.
THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING BECAUSE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFEC[T]IVE ASSISTANCE OF COUNSEL.
267 N.J. Super. 520 (App. Div. 1993)
196 N.J. 23 (2008) .
--------
We are not persuaded by any of these arguments and affirm.
Defendant's arguments regarding the jury instructions are procedurally barred by Rules 3:22-4 and 3:22-5. Defendant has advanced no exceptional circumstances or constitutional issues of substantial import to warrant consideration of these issues.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION