Opinion
DOCKET NO. A-1265-12T4
03-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRANCE MOORE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-12-0960.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Terrance Moore appeals from the August 30, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial and appellate counsel. We affirm.
A grand jury indicted defendant for first-degree robbery, N.J.S.A. 2C:15-1a(1)-(2); third-degree criminal restraint, N.J.S.A. 2C:13-2a; third-degree aggravated assault; N.J.S.A. 2C:12-1b(7); third-degree escape, N.J.S.A. 2C:29-5a; fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2); and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4e. The charges against defendant stemmed from his involvement in an armed robbery during a home invasion.
The record reveals the following facts. Shortly after the robbery, the police apprehended defendant directly outside the crime scene along with the fruits of the robbery, and two of the victims positively identified him as one of the assailants. Defendant was arrested and transported to police headquarters, where he freed himself from his handcuffs and ran from the police. He was apprehended and, after receiving and waiving his Miranda rights, gave an audio-recorded statement admitting that he with an accomplice: entered an apartment with handguns to get money; pointed the gun at people and pushed them; handcuffed a victim and told other victims to handcuff themselves to each other; left the apartment with the victims' possessions; and tried to escape from the police.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Following a jury trial, at which defendant's recorded statement was played, defendant was convicted of all charges. On October 19, 2007, the trial judge sentenced him to fifteen-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate assessments and penalties, and ordered defendant to pay restitution.
Defendant filed a direct appeal in 2008. The appeal was administratively dismissed on October 10, 2008, for failure to file a merits brief. Nearly three years later, on August 9, 2011, defendant filed a pro se PCR petition, arguing he was denied a fair trial due to juror misconduct and other trial errors, and his sentence was excessive. He also argued that trial counsel rendered ineffective assistance by failing to: address the juror misconduct issue; investigate potential witnesses; adequately prepare for trial; and conduct adequate cross-examination. Defendant also claimed that trial counsel was ineffective at sentencing, and the appellate counsel rendered ineffective assistance by failing to file a merits brief.
In an August 30, 2012 order and comprehensive written opinion, Judge John Pursel made extensive factual findings and legal conclusions and determined that the majority of defendant's claims were procedurally barred by Rule 3:22-3 and Rule 3:22-4 because they should have been raised on direct appeal, and no exceptions applied. Addressing the merits, the judge found that "given the torrent of evidence" against defendant, he could not establish the two prongs set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), that trial counsel's performance was deficient and defendant was prejudiced thereby.
Judge Pursel also addressed the issues defendant could have raised on direct appeal, and determined there were no errors committed by the court or trial counsel. Thus, assuming defendant satisfied the first prong of Strickland, that appellate counsel was ineffective for failing to file a merits brief, defendant could not establish prong two, that he was prejudiced thereby.
On appeal, defendant raises the following contentions:
POINT IWe have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Pursel in his comprehensive and well-reasoned written opinion.
DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON [PCR].
POINT II
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO [PCR].
POINT IV
THE TRIAL JUDGE ERRED AT SENTENCING WHEN HE FAILED TO ADDUCE PROPER EVIDENCE IN SUPPORT OF HIS FINDING OF AGGRAVATING FACTORS AND MITIGATING FACTORS.
POINT V
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO TRIAL BEFORE A FAIR AND IMPARTIAL JURY AND IS THEREFORE ENTITLED TO [PCR].
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION