STATE OF NEW JERSEY v. RALPH REEVEY

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. RALPH REEVEY, Defendant–Appellant.

DOCKET NO. A–1627–11T4

Decided: March 17, 2014

Before Judges Fuentes and Haas. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Defendant Ralph Reevey appeals from the order of the trial court denying his post-conviction relief (PCR) petition.   We affirm.

In May 2004, defendant was tried before a jury in Monmouth County and convicted of first degree robbery, N.J.S.A. 2C:15–1, and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4d.   After merging the third degree weapon possession conviction with the first degree robbery, the court sentenced defendant on August 13, 2004, to a term of eighteen years, with an eighty-five percent period of parole ineligibility and five-year period of parole supervision, both pursuant to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. On direct appeal, we affirmed defendant's conviction and the sentence imposed by the court.   State v. Reevey, No. A–0265–04 (App.Div. January 26, 2006).

The Supreme Court granted defendant's petition for certification limited to the legality of the sentence, and summarily remanded the case to the trial court for a reconsideration of the sentence after applying the sentencing guidelines established in State v. Natale, 184 N.J. 458 (2005).  State v. Reevey, 188 N.J. 349 (2006).   The trial court conducted a re-sentencing hearing on December 8, 2006, and after applying the standards established in Natale, reaffirmed its original sentence of eighteen years subject to the requirements of NERA.

On April 28, 2008, defendant filed a pro se PCR petition alleging ineffective assistance of trial counsel.   The Office of the Public Defender initially assigned counsel to represent defendant in the prosecution of the petition.   Unfortunately, between February 2009 and February 2010, the attorney assigned by the Public Defender's Office to represent defendant did not diligently perform his duties and failed to file the brief in support of the petition within the timeframe established by the court.   By order dated February 16, 2010, the court dismissed defendant's PCR petition for lack of prosecution.

Substitute counsel filed a motion to reinstate the petition.   While this motion was pending, by order dated June 16, 2010, the court sua sponte 1 transferred venue of the case to Ocean County.   Defendant's PCR petition was assigned for adjudication in Ocean County to Judge James Den Uyl, who reinstated the matter to the active calendar and directed defendant's PCR counsel to prosecute the petition forthwith.   PCR counsel amended defendant's pro se petition to add a claim of ineffective assistance of appellate counsel and expanded the claims against trial counsel to include:  (1) failure to object to the victim's alleged prejudicial and unreliable in-court identification;  (2) improperly conceding defendant's presence at the crime scene;  (3) failing to object to certain allegedly prejudicial testimony of a police officer witness;  and (4) failing to object to the State's reference to codefendant, a minor, as an adjudicated delinquent.   PCR counsel also submitted a legal memorandum in support of the arguments raised in the petition.

Judge Den Uyl considered the arguments of counsel at a hearing held on March 16, 2011.   By order dated April 19, 2011, Judge Den Uyl denied defendant's petition, explaining his reasons in a memorandum of opinion.   Applying the standards established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), Judge Den Uyl found defendant had not established a prima facie case of ineffective assistance from either his trial or appellate counsel.

Defendant now appeals raising the following argument.

POINT I

MR. REEVEY IS ENTITLED TO A HEARING ON HIS CLAIMS THAT TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR CONCEDING IDENTIFICATION AND FAILING TO PRESENT A VIABLE DEFENSE;  FOR FAILING TO OBJECT WHEN THE JURY LEARNED THAT THE JUVENILE ACCOMPLICE–PERPETRATORS WERE DEALT WITH IN COURT;  AND FOR FAILING TO RAISE THESE ISSUES ON DIRECT APPEAL.

Defendant's argument lacks sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons expressed by Judge Den Uyl in his memorandum of opinion supporting his order dated April 19, 2011.

Affirmed.

FOOTNOTES

1.  FN1. The court took this action to avoid any appearance of impropriety because defendant's original trial counsel was appointed a Superior Court Judge and assigned to serve in this capacity in Monmouth County.

PER CURIAM

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