Opinion
DOCKET NO. A-5768-10T4
05-30-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KYLE KITTRELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Chief Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-09-2190.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Chief Assistant County Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a January 6, 2011 order denying his petition for post-conviction relief (PCR). Defendant pled guilty to second-degree robbery, N.J.S.A. 2C:15-1, and contends primarily that his plea counsel was ineffective. We disagree and affirm.
In August 2008, defendant and his friend were in the Trump Plaza Hotel and Casino located in Atlantic City and observed the victim playing at a craps table. A casino surveillance camera showed defendant and his friend surrounding the victim at the craps table and then following the victim to a restaurant in the casino. They approached the victim, who had been standing in line with his family waiting to be seated, and they pushed the victim as defendant reached into his pocket. The victim resisted, grabbed defendant's hand, and pulled it out of his pocket as money fell to the floor. The police arrested defendant at the scene.
In March 2009, defendant entered his guilty plea and testified that he followed the victim to the restaurant, grabbed him, and used force to steal money from his pocket. Defendant testified that he observed money come out of the victim's pocket "[a]s we fell to the floor." At the plea hearing, defendant admitted that he and his friend essentially wrestled with the victim to steal his money.
In May, 2009, the sentencing judge followed the plea agreement and imposed a five-year prison term with eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, concurrent to a separate conviction for third-degree theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:20-2b(2)(d). Defendant did not file a direct appeal.
In March 2010, defendant filed his pro se petition for PCR. Retained counsel filed a brief and amplified the arguments contained in the petition. Thereafter, defendant filed a pro se brief. In general, defendant challenged the factual basis of his plea and contended that his plea counsel was ineffective by failing to negotiate a better agreement with the State and file a motion to dismiss the indictment.
Dated November 17, 2010.
Dated November 23, 2010.
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In January 2011, Judge Bernard E. DeLury, Jr., conducted oral argument, denied the petition, and issued a twelve-page oral opinion. The PCR judge allowed defendant to testify during oral argument and determined that defendant failed to establish a prima facie case of ineffective assistance of counsel. This appeal followed.
On appeal, defendant raises the following points:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST BEING INDICTED BY A GRAND JURY THAT WAS NOT FULLY INSTRUCTED ON THE LAW BY THE PROSECUTOR, AND THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE
PROTECTED AGAINST PLEADING GUILTY TO A CRIME HE DID NOT COMMIT, WERE VIOLATED.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT III
THE COURT'S ORDER DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
POINT IV
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
A. PETITIONER'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY, AND SHOULD BE VACATED. B. POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS IDENTIFIED IN DEFENDANT'S PETITION.
C. POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE ONLY HEARSAY TESTIMONY WAS PRESENTED AT THE GRAND JURY AND BECAUSE THE DEFENDANT DID NOT RECEIVE A COPY OF THE SURVEILLANCE VIDEO TAPE.
We have carefully considered the arguments made by defendant in light of the record and applicable legal principles and conclude that his arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge DeLury in his January 6, 2011 oral opinion. We add the following brief comments.
Defendant contends that he gave an inadequate factual basis for his plea. "A person is guilty of robbery if, in the course of committing a theft, he . . . uses force upon another[.]" N.J.S.A. 2C:15-1a(1). Defendant and his friend approached the victim, surrounded him, and pushed and shoved him to obtain the money. Judge DeLury stated, "This wasn't a distract and grab; this was a distract, grab, push, shove, grab again, roll around, pick up and grab again." Thus, defendant provided an adequate factual basis for his plea.
We reject defendant's argument that his plea counsel failed to obtain a better plea deal with the State. Plea counsel negotiated a favorable resolution with a five-year NERA sentence, given that defendant was extended-term-eligible with a history of eighteen convictions, including twelve prior felonies and various violations of probation and open warrants. We agree with Judge DeLury's statement that the "negotiated outcome with [concurrent] time for yet another indictable offense was a very favorable outcome for the defendant."
Finally, although defendant maintains that a motion to dismiss the indictment was warranted because the "grand jury was not fully instructed on the law," he has failed to establish a prima facie case of ineffective assistance of counsel enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Even if plea counsel's performance was deficient by not filing a motion to dismiss the indictment, ibid., defendant has not demonstrated that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Had such a motion been filed and granted, the State would have re-presented the case to the grand jury with revised instructions. Thus, defendant could not have obtained a more favorable plea agreement by challenging the technical language of the indictment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION