JUSTO LOPEZ, JR. VS. MICHAEL A. TETI (L-953-12, CUMBERLAND COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 5, 2017
• Docket: A-4914-14T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4914-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELO RICHARDSON, a/k/a ANDREW RICHARDSON, HASSAN RICHARDSON and RICKY RICHARDSON,

Defendant-Appellant. __________________________________________

Submitted November 9, 2016 – Decided March 10, 2017

Before Judges Guadagno and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-0140.

Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Angelo Richardson appeals from a Law Division

order entered on March 21, 2014, denying his petition for post-

conviction relief (PCR). Defendant claims he received

ineffective assistance from his trial counsel and his PCR

counsel. Finding no merit to these claims, we affirm.

On November 4, 2009, Hillside police responded to a

residence where a burglar alarm had been activated. Police

observed a man, later identified as defendant, walking away from

the residence carrying a plastic bag. When the officers

identified themselves, defendant fled with jewelry spilling from

the plastic bag as he ran. Defendant was eventually tackled and

placed under arrest.

When police returned to the residence, they noticed a

window in the back door had been broken. The resident of the

home identified jewelry and other items recovered by police from

the bag defendant was carrying.

In 2010, defendant was tried to a jury and convicted of

third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft,

N.J.S.A. 2C:20-3; and fourth-degree resisting arrest by flight,

N.J.S.A. 2C:29-2(a). Defendant was sentenced to an extended

term of ten years imprisonment on the burglary charge, which

merged with the theft charge. Defendant received a consecutive

2 A-4914-13T2 eighteen-month sentence on the resisting arrest charge.

Defendant appealed his conviction and sentence.

We affirmed defendant's conviction but remanded for

resentencing as the judge erred in considering an aggravating

factor that defendant committed an offense against a law

enforcement officer. State v. Richardson, No. A-2928-10 (App.

Div. Aug. 2, 2012) (slip op at 10-11). Defendant's petition for

certification was denied. 213 N.J. 535 (2013).

While the certification petition was pending, defendant was

resentenced to the same terms on both counts. Defendant

appealed the resentencing. On June 3, 2013, we heard the matter

on an excessive sentencing oral argument calendar and affirmed.

On November 29 and December 10, 2010, after defendant's

first sentence but before the notice of appeal was filed,

defendant wrote to the Union County criminal division manager

complaining that he received ineffective assistance of trial

counsel.

On April 23, 2013, these two letters were accepted as a PCR

petition and counsel was assigned to represent defendant. On

February 15, 2014, defendant's PCR counsel filed a memorandum of

law in support of defendant's petition. On March 21, 2014,

Judge Scott J. Moynihan heard oral argument on the PCR petition

and denied the petition without a hearing.

3 A-4914-13T2 On appeal, defendant raises the following points:

POINT I

THE PCR COURT'S ORDER DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED OR THE MATTER REMANDED BECAUSE THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN THE PROCEEDINGS BELOW.

A. THE DEFENDANT WAS PREJUDICED BY TRIAL COUNSEL'S FAILURE TO FILE A MERITORIOUS MOTION TO DISMISS THE INDICTMENT. (NOT RAISED BELOW).

B. TRIAL COUNSEL'S FAILURE TO IMPEACH THE STATE'S POLICE WITNESSES' CREDIBILITY CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).

1. TRIAL COUNSEL FAILED TO IMPEACH DET. RICCI'S CREDIBILITY WITH THE PRIOR INCONSISTENT STATEMENTS HE MADE AT THE GRAND JURY HEARING.

2. TRIAL COUNSEL'S FAILURE TO ATTACK DET. RICCI AND LT. KATSOUDAS' CREDIBILITY WITH THE VARYING INFORMATION CONTAINED IN PTL. LESHKO'S REPORT CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.

C. TRIAL COUNSEL'S FAILURE TO INTRODUCE THE TRANSCRIPT OF DET. RICCI'S GRAND JURY TESTIMONY AS SUBSTANTIVE EVIDENCE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).

D. TRIAL AND PCR COUNSEL FAILED TO INVESTIGATE AND PRESENT FAVORABLE EVIDENCE.

4 A-4914-13T2 E. TRIAL COUNSEL FAILED TO ADEQUATELY CONSULT WITH MR. RICHARDSON.

F. PCR COUNSEL'S FAILURE TO PROPERLY PRESENT THE ABOVE ISSUES ON POST- CONVICTION RELIEF AMOUNTS TO INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT APPLIED THE PROCEDURAL BAR CONTAINED IN R. 3:22-5 TO DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

POINT III

THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

We have carefully considered these arguments in light of

the applicable legal principles, and we conclude that they are

without sufficient merit to warrant extensive discussion in a

written opinion. R. 2:11-3(e)(2). We affirm the denial of

defendant's PCR petition substantially for the reasons expressed

in Judge Moynihan's comprehensive oral decision of March 21,

2014.

Affirmed.

5 A-4914-13T2