Opinion
DOCKET NO. A-2708-13T3
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE PEREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-07-1699. Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jose Perez appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
A grand jury indicted defendant for first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a). The matter proceeded to trial following Judge Martin G. Cronin's denial of defendant's Wade motion to suppress the out-of-court and in-court photographic identifications of defendant.
During trial, the judge granted defendant's motion to bar the State's use of fingerprint evidence due to a discovery violation. Despite this ruling, defense counsel elicited admissions from a witness for the State that fingerprints found on the door of the jewelry store that was robbed did not match defendant's fingerprints and there were no usable fingerprints on the handgun found at the crime scene.
The jury acquitted defendant of first-degree robbery and the lesser-included offense of second-degree robbery, but found him guilty on counts two and three. Judge Cronin subsequently denied defendant's motion for a judgment of acquittal on count three. After determining that defendant was eligible for a mandatory extended-term sentence as a second offender with a firearm pursuant to N.J.S.A. 2C:44-3(d), on June 5, 2006, the judge sentenced defendant to an eighteen-year term of imprisonment with a five-year period of parole ineligibility.
Defendant appealed his conviction, arguing, in part, that Judge Cronin should have excluded the out-of-court and in-court identifications. Defendant also appealed his sentence. We affirmed, and our Supreme Court denied certification. State v. Perez, No. A-6441-05 (App. Div. Dec. 23, 2008), certif. denied, 198 N.J. 474 (2009).
On January 15, 2010, defendant filed a writ of habeas corpus with the federal district court. On February 14, 2012, the federal court denied the petition. Perez v. Glover, No. 10-655 (D.N.J. Feb. 14, 2012).
On June 7, 2012, defendant filed a PCR petition, arguing that trial counsel rendered ineffective assistance by failing to investigate the pre-trial identification procedures employed by the police and the lack of forensic evidence recovered at the scene, and failing to communicate with him to prepare the case for trial.
In an oral opinion, Judge Cronin found the petition was time-barred under Rule 3:22-12(a)(1). Citing State v. Milne, 178 N.J. 486, 494 (2004), the judge found that the filing of a writ of habeas corpus with the federal court did not extend the time period to file a PCR petition in State court. Citing State v. Murray, 162 N.J. 240, 246 (2000), the judge found that defendant's alleged lack of sophistication in the law and unfamiliarity with court procedures did not constitute excusable neglect.
Addressing the merits, Judge Cronin held that defendant failed to establish both prongs of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) -- that counsel's performance was deficient and the deficiency prejudiced the defense. The judge found that trial counsel vigorously challenged the pre-trial identification procedures during the Wade hearing and at trial, and we affirmed the denial of defendant's motion to suppress the identification evidence. The judge also found that trial counsel appropriately challenged the lack of fingerprints on the handgun found at the crime scene, trial counsel's efforts resulted in defendant's acquittal of first-degree robbery and the lesser-included offense of second-degree robbery, and there was strong eyewitness evidence of defendant's guilt on the charges for which he was convicted.
On appeal, defendant reiterates the arguments made to Judge Cronin. We have considered these arguments 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 Cronin in his well-reasoned oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).