NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4514-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BENJAMIN CAPERS a/k/a BENJAMIN COOPER,
Defendant-Appellant. ________________________
Submitted September 14, 2020 – Decided November 20, 2020
Before Judges Suter and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-04-0384 and 09-04-0385.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Lyndsay V. Ruotolo, 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 Benjamin Capers appeals from a denial of his second petition
for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was convicted of two counts of robbery, N.J.S.A. 2C:15-1; one
count of certain persons not to possess weapons, N.J.S.A. 2C:39-7; and various
lesser charges. On October 21, 2010, defendant was sentenced by a judge to
serve forty-five years in prison.
The defendant filed a PCR on December 9, 2013. On June 26, 2015, a
judge who did not try the case denied the petition without an evidentiary hearing.
On July 31, 2017, we affirmed.
The defendant filed a second PCR petition on July 27, 2018. A second
PCR judge denied it on May 23, 2019. Defendant appealed.
I.
On January 12, 2009, while working at his store, Mayan Makim was
robbed at gunpoint. Makim stated that he recognized the gunman as a recent
shopper. The man grabbed a woman customer and told her that he was not going
to hurt her. Defendant gave Makim a bag and demanded money. Makim gave
the man money from the cash register as well as the cigarettes the man requested.
Both Makim and the customer identified defendant in a photo array and at trial.
A-4514-18T4 2 On January 28, 2009, Anil Patel was sweeping his store when a man
wearing a green jumpsuit and black hat entered the store. The man jumped over
the counter, displayed a silver handgun and a laundry bag, then demanded
money from Patel. After Patel put the money in the laundry bag, he observed
the man leave the store. He saw a brown minivan pull away from the store,
called 9-1-1, and reported the license plate number of the minivan. The police
pursued the brown minivan based on Patel's description. The minivan
eventually crashed into a cement divider. Defendant exited the minivan and
fled, but he was apprehended by police. When the police caught defendant, he
was wearing a green jumpsuit. In the minivan, the police found a silver handgun,
hat, black gloves, and laundry bag containing $4.66 in change. After his arrest,
defendant was processed, and he had $418.00.
The police brought Patel to the scene of the arrest where he identified the
minivan and defendant, and again at trial. Patel testified he was one-hundred
percent sure that defendant was the person who robbed him.
Defendant testified that he was not in Linden, the location of Makim's
store, on January 12, 2009, nor was he at Patel's store on January 28, 2009. He
testified that at around 4:00 p.m., on January 28, 2009, he and Monica Way
discussed buying a dog for their daughter. Monica Way testified at trial and
A-4514-18T4 3 corroborated defendant's testimony. Further, defendant testified he borrowed
Tynesha Moore's minivan on January 28. While driving the minivan, a man in
a green jumpsuit knocked on the van's window with a handgun and demanded
that defendant open the door. Defendant testified the man in the green jumpsuit
forced defendant to help him evade the police or else the man would shoot
defendant. He drove the van until it lost control and crashed. He also testified
that he tried to tell the police about the carjacking by the man in the green
jumpsuit.
At trial, the defendant was convicted on the two robbery counts and all
the remaining counts. Defendant appealed, and we affirmed his convictions and
sentence in an unpublished opinion. State v. Capers (Capers I), No. A-4369-10
(App. Div. Apr. 19, 2013).
On December 9, 2013, defendant filed his first petition for PCR. In that
petition, defendant argued three grounds for ineffective assistance of counsel,
alleging that his trial counsel failed to pursue a Wade1 hearing, failed to present
a DNA expert to counter the State's expert, and failed to act in a timely manner
to preserve Patel's 9-1-1 call.
1 U.S. v. Wade, 388 U.S. 218 (1967). A-4514-18T4 4 A judge who did not preside over the trial or the sentence heard argument
on the first PCR, denying an evidentiary hearing and the petition. Prior to
argument, PCR counsel raised an unbriefed issue, alleging trial counsel's failure
to investigate and present alibi testimony regarding the January 12 robbery.
PCR counsel presented the court with an investigative report, a handwritten note
from the alibi witness, Ambi Parrish, and a copy of an email authored by Parrish
("the Parrish alibi papers"). Parrish claimed to be with the defendant on January
12, 2009, from 5:14 p.m. until 1:26 a.m. the next day. In addition to the Parrish
alibi papers, PCR counsel presented a certification 2 from the investigator.
Parrish's handwritten letter and email were unsworn. The judge addressed the
unsworn Parrish alibi papers on the merits and found them not reliable. He noted
that, even if the alibi papers were certified, he would still deny the PCR on the
2 Rule 3:22-10(c) states that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." Under this rule, a defendant asserting a claim of ineffective assistance of counsel in a petition for PCR based on his counsel's failure to produce a witness at trial must present a certification by that witness concerning the testimony the witness would have been prepared to give. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div. 1999).
A-4514-18T4 5 merits, because defendant had the chance to present the alibi evidence at his trial
and failed to do so.
Defendant appealed the PCR denial on August 20, 2015. On July 31,
2017, we affirmed denial in an unpublished opinion, finding that the Parrish
alibi papers defendant submitted in support of his PCR did not conform with the
requirements of Rule 3:22-10(c), and defendant failed to show prima facie
evidence of ineffective assistance of counsel. State v. Capers (Capers II), No.
A-5645-14 (App. Div. July 31, 2017).
On July 27, 2018, defendant filed a second PCR. In his second petition,
defendant argued ineffective assistance of trial counsel grounded in the same
three allegations he used in his first PCR, as well as ineffective assistance by
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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-4514-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BENJAMIN CAPERS a/k/a BENJAMIN COOPER,
Defendant-Appellant. ________________________
Submitted September 14, 2020 – Decided November 20, 2020
Before Judges Suter and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-04-0384 and 09-04-0385.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Lyndsay V. Ruotolo, 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 Benjamin Capers appeals from a denial of his second petition
for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was convicted of two counts of robbery, N.J.S.A. 2C:15-1; one
count of certain persons not to possess weapons, N.J.S.A. 2C:39-7; and various
lesser charges. On October 21, 2010, defendant was sentenced by a judge to
serve forty-five years in prison.
The defendant filed a PCR on December 9, 2013. On June 26, 2015, a
judge who did not try the case denied the petition without an evidentiary hearing.
On July 31, 2017, we affirmed.
The defendant filed a second PCR petition on July 27, 2018. A second
PCR judge denied it on May 23, 2019. Defendant appealed.
I.
On January 12, 2009, while working at his store, Mayan Makim was
robbed at gunpoint. Makim stated that he recognized the gunman as a recent
shopper. The man grabbed a woman customer and told her that he was not going
to hurt her. Defendant gave Makim a bag and demanded money. Makim gave
the man money from the cash register as well as the cigarettes the man requested.
Both Makim and the customer identified defendant in a photo array and at trial.
A-4514-18T4 2 On January 28, 2009, Anil Patel was sweeping his store when a man
wearing a green jumpsuit and black hat entered the store. The man jumped over
the counter, displayed a silver handgun and a laundry bag, then demanded
money from Patel. After Patel put the money in the laundry bag, he observed
the man leave the store. He saw a brown minivan pull away from the store,
called 9-1-1, and reported the license plate number of the minivan. The police
pursued the brown minivan based on Patel's description. The minivan
eventually crashed into a cement divider. Defendant exited the minivan and
fled, but he was apprehended by police. When the police caught defendant, he
was wearing a green jumpsuit. In the minivan, the police found a silver handgun,
hat, black gloves, and laundry bag containing $4.66 in change. After his arrest,
defendant was processed, and he had $418.00.
The police brought Patel to the scene of the arrest where he identified the
minivan and defendant, and again at trial. Patel testified he was one-hundred
percent sure that defendant was the person who robbed him.
Defendant testified that he was not in Linden, the location of Makim's
store, on January 12, 2009, nor was he at Patel's store on January 28, 2009. He
testified that at around 4:00 p.m., on January 28, 2009, he and Monica Way
discussed buying a dog for their daughter. Monica Way testified at trial and
A-4514-18T4 3 corroborated defendant's testimony. Further, defendant testified he borrowed
Tynesha Moore's minivan on January 28. While driving the minivan, a man in
a green jumpsuit knocked on the van's window with a handgun and demanded
that defendant open the door. Defendant testified the man in the green jumpsuit
forced defendant to help him evade the police or else the man would shoot
defendant. He drove the van until it lost control and crashed. He also testified
that he tried to tell the police about the carjacking by the man in the green
jumpsuit.
At trial, the defendant was convicted on the two robbery counts and all
the remaining counts. Defendant appealed, and we affirmed his convictions and
sentence in an unpublished opinion. State v. Capers (Capers I), No. A-4369-10
(App. Div. Apr. 19, 2013).
On December 9, 2013, defendant filed his first petition for PCR. In that
petition, defendant argued three grounds for ineffective assistance of counsel,
alleging that his trial counsel failed to pursue a Wade1 hearing, failed to present
a DNA expert to counter the State's expert, and failed to act in a timely manner
to preserve Patel's 9-1-1 call.
1 U.S. v. Wade, 388 U.S. 218 (1967). A-4514-18T4 4 A judge who did not preside over the trial or the sentence heard argument
on the first PCR, denying an evidentiary hearing and the petition. Prior to
argument, PCR counsel raised an unbriefed issue, alleging trial counsel's failure
to investigate and present alibi testimony regarding the January 12 robbery.
PCR counsel presented the court with an investigative report, a handwritten note
from the alibi witness, Ambi Parrish, and a copy of an email authored by Parrish
("the Parrish alibi papers"). Parrish claimed to be with the defendant on January
12, 2009, from 5:14 p.m. until 1:26 a.m. the next day. In addition to the Parrish
alibi papers, PCR counsel presented a certification 2 from the investigator.
Parrish's handwritten letter and email were unsworn. The judge addressed the
unsworn Parrish alibi papers on the merits and found them not reliable. He noted
that, even if the alibi papers were certified, he would still deny the PCR on the
2 Rule 3:22-10(c) states that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." Under this rule, a defendant asserting a claim of ineffective assistance of counsel in a petition for PCR based on his counsel's failure to produce a witness at trial must present a certification by that witness concerning the testimony the witness would have been prepared to give. See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div. 1999).
A-4514-18T4 5 merits, because defendant had the chance to present the alibi evidence at his trial
and failed to do so.
Defendant appealed the PCR denial on August 20, 2015. On July 31,
2017, we affirmed denial in an unpublished opinion, finding that the Parrish
alibi papers defendant submitted in support of his PCR did not conform with the
requirements of Rule 3:22-10(c), and defendant failed to show prima facie
evidence of ineffective assistance of counsel. State v. Capers (Capers II), No.
A-5645-14 (App. Div. July 31, 2017).
On July 27, 2018, defendant filed a second PCR. In his second petition,
defendant argued ineffective assistance of trial counsel grounded in the same
three allegations he used in his first PCR, as well as ineffective assistance by
the first PCR counsel for failing to have the Parrish alibi papers certified
pursuant to Rule 3:22-10(c).
A judge who did not hear the first PCR motion denied defendant's petition.
The second PCR judge found it untimely under the twelve-month time limitation
established in Rule 3:22-12(a)(2). The judge noted that defendant's factual
predicate for the second petition derived from the first petition, which was
denied on June 26, 2015. The judge found that the second PCR should have
been filed no later than June 27, 2016. This finding rendered defendant's second
A-4514-18T4 6 PCR time barred. The judge consequently dismissed the defendant’s second
PCR without an evidentiary hearing.
Nevertheless, the judge addressed the merits of the second petition. The
judge noted that the second petition was grounded in the actions of defendant's
trial counsel and defendant's first PCR counsel. The judge noted that defendant
understood his right to present alibi testimony for the January 28 robbery, and
in fact did so. The judge noted that on three occasions defendant did not raise
the Parrish alibi. The defendant did not raise the Parrish alibi defense in his
January 12, 2009 robbery trial, in the appeal of his conviction (where he filed a
supplemental pro-se brief), nor did he raise it in his pro-se PCR application. The
judge found that the first-time defendant raised the alibi witness issue was on
October 30, 2014, in a letter to his counsel. In the letter, defendant stated he
told his trial counsel about the alibi. However, the judge found nothing in the
record which revealed any communication between the investigator and trial
counsel. The judge found defendant's assertion that trial counsel was aware of
the Parrish alibi unsupported by the record. As a result, the judge concluded
that defendant's first PCR failed the first prong of Strickland 3, because defendant
3 Strickland v. Washington, 466 U.S. 668 (1984). A-4514-18T4 7 failed to demonstrate trial counsel was aware of the alibi or failed to investigate
it.
The judge noted that we affirmed the first PCR, finding that defendant
failed to make out a prima facie case. Relying on our affirmance as well as his
analysis of the merits of the first PCR, the judge found that even if the second
petition were timely, defendant failed to present a prima facie case for
ineffective assistance of counsel.
Defendant raises following two issues on appeal:
POINT I - DEFENDANT'S SECOND PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.
POINT II - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S AND FIRST PCR COUNSEL'S INEFFECTIVENESS FOR FAILING TO ADEQUATELY PURSUE A PROSPECTIVE ALIBI WITNESS.
II.
We conduct a de novo review where the PCR court denies an evidentiary
hearing. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (citing
State v. Harris, 181 N.J. 391, 421 (2004)). "The Sixth Amendment of the United
States Constitution and Article I, paragraph 10 of the New Jersey Constitution
require that a defendant receive 'the effective assistance of counsel' during a
A-4514-18T4 8 criminal proceeding." State v. Porter, 216 N.J. 343, 352 (2013) (citing
Strickland, 466 U.S. at 685-86; State v. Fritz, 105 N.J. 42, 58 (1987)). To
establish an ineffective assistance of counsel claim, the claimant must prove
counsel's performance was deficient and that counsel's "deficient performance
prejudiced the defense." State v. Pierre, 223 N.J. 560, 578 (2015) (quoting
Strickland, 466 U.S. at 687). To prove a counsel's performance was deficient
requires a showing that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Ibid. (quoting Strickland, 466 U.S. at 687). Next, to prove the counsel's
deficient performance prejudiced the defense, the defendant must show that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Pierre, 223 N.J. at 578.
Our court rules impose time limitations for filing first and subsequent PCR
petitions.
Rule 3:22-4(b) reads as follows:
A second or subsequent petition for post-conviction relief shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
A-4514-18T4 9 (A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post- conviction relief.
[R. 3:22-4 (b)]
The threshold condition, listed in subsection 4(b)(1), requires the second
or subsequent petition to be filed "timely" under Rule 3:22-12(a)(2).
Rule 3:22-12(a)(2) reads as follows:
Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right
A-4514-18T4 10 has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or
(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or
(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post- conviction relief is being alleged.
[Ibid.]
Rule 1:3-4(c) expressly prohibits enlargement of the time specified for
filing petitions for post-conviction relief under Rule 3:22-12. Additionally, we
have held that enlargement of the one-year time limit under Rule 3:22-12 is
prohibited. Jackson, 454 N.J. Super. at 292 (App. Div. 2018) (citing Aujero v.
Cirelli, 110 N.J. 566, 577 (1988)). An untimely subsequent or second filing of
a PCR petition cannot "be excused in the same manner as the late filing of a first
PCR petition." Id. at 293.
A-4514-18T4 11 III.
Defendant claims no newly recognized constitutional right, therefore we
find that Rule 3:22-12(a)(2)(A) does not apply to the facts of this case.
Defendant’s claim is not based on evidence or information that could not have
been discovered earlier through the exercise of reasonable diligence. Defendant
grounded his first three PCR claims for ineffective assistance of counsel on
events which took place at his 2010 trial. None of those claims can be
characterized as arising from evidence or information that could not have been
discovered earlier. His fourth claim, raised late before the first PCR court,
alleged that his trial counsel failed to investigate and present the Parrish alibi
witness in the January 12, 2009 robbery trial. Those claims were rejected by the
first PCR court on June 26, 2015. On that date, the defendant discovered or
should have discovered that the Parrish alibi statements were unsworn and
uncertified. Even if the defendant did not discover the Parrish alibi papers'
unsworn nature on June 26, he knew of it no later than August 20, 2015, when
he filed a notice of appeal. The defendant has shown no factual predicate which
"could not have been discovered earlier through the exercise of reasonable
diligence," consequently Rule 3:22-12(a)(2)(B) does not apply to the facts of
this case.
A-4514-18T4 12 Defendant is time barred by Rule 3:22-12(a)(2)(C). Over three years
elapsed between the denial of the first petition and the filing of defendant's
second petition. Defendant argues that the one-year time limitation should
commence with our affirmance of the first PCR denial, on July 31, 2017. We
disagree. Such an interpretation of the rule would result in an impermissible
enlargement of the one-year time limitation. See R. 1:3-4(c); see also Jackson,
454 N.J. Super. at 292.
This court need not reach the merits of defendant's second PCR petition.
We disposed of the identical PCR trial arguments in defendant’s first petition.
We found that the January 12, 2009 alibi statements submitted, which did not
comply with the requirements of Rule 3:22-10(c), failed to present prima facie
evidence of ineffective assistance of counsel, obviating the need for an
evidentiary hearing.
The second PCR judge properly rejected the argument that PCR counsel
was ineffective in failing to obtain proper certification for the Parrish alibi
papers under Rule 3:22-10(c), citing our unpublished affirmance in Capers II.
Ibid. The judge found that, had the second petition been timely, the alleged error
was not enough to establish a prima facie case of ineffective assistance of
counsel.
A-4514-18T4 13 The second PCR was untimely pursuant to Rule 3:22-12(a)(2). It was
correctly dismissed by the judge without an evidentiary hearing under Rule
3:22-4(b)(1).
Affirmed.
A-4514-18T4 14