STATE OF NEW JERSEY v. JOHNNY ROBERTSON

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. JOHNNY ROBERTSON, Defendant–Appellant.

DOCKET NO. A–5564–11T2

Decided: April 1, 2014

Before Judges Nugent and Accurso. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Defendant Johnny Robertson appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing.   Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.

Defendant was indicted on charges of first degree robbery, N.J.S.A. 2C:15–1;  kidnapping, N.J.S.A. 2C:13–1b;  aggravated assault, N.J.S.A. 2C:12–1b(1);  terroristic threats, N.J.S.A. 2C:12–3b;  and conspiracy to commit robbery, kidnapping, and aggravated assault, N.J.S.A. 2C:5–2, 2C:15–1, 2C:13–1b, and 2C:12–1b(1), stemming from his assault on his housemate committed with three other persons.   A jury convicted him of aggravated assault and false imprisonment and acquitted him of the remaining charges.   The judge sentenced him to an aggregate term of six years subject to the periods of parole ineligibility and supervision mandated by the No Early Release Act (NERA).   We affirmed defendant's conviction and sentence on direct appeal, State v. Robertson, No. A–4233–07 (App.Div. Aug. 20, 2010), and the Supreme Court denied certification, 205 N.J. 78 (2011).

Defendant filed a petition and an amended petition for post-conviction relief based on claims of ineffective assistance of trial and appellate counsel.   Defendant claimed that his trial counsel failed to conduct an adequate investigation by failing to locate witnesses who would have exonerated him, neglected to arrange DNA testing to prove that he did not attack the victim, and coerced him into not testifying on his own behalf, despite his lack of any criminal record.   He claimed that appellate counsel failed to argue that the evidence was insufficient to support the jury's verdict, and had she done so that his conviction would have been reversed.

After hearing argument by counsel, the judge issued a written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief.   See State v. Preciose, 129 N.J. 451, 462–64 (1992).   The judge found no support in the record for defendant's claim of witnesses who would have exonerated him or that DNA testing would have been in any way helpful.   She rejected defendant's claim that his counsel had coerced him into not testifying because it was clearly contradicted by defendant's lengthy colloquy with the trial judge, which she quoted in her opinion denying the petition.   The judge rejected defendant's claim that his appellate counsel had been ineffective because defendant failed to specify why the evidence was insufficient or how that argument could have affected the outcome of the appeal.

On appeal, defendant presents the following argument:

POINT I:

The Trial Court Erred in Denying the Defendant's Petition For Post Conviction Relief Without Affording Him an Evidentiary Hearing to Fully Address his Contention that he Failed to Receive Adequate Legal Representation at the Trial Level.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL INVOLVING TRIAL COUNSEL PRESSURING HIM NOT TO TESTIFY AT TRIAL, HE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

We reject this argument and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Rose's March 14, 2012 written opinion.

Affirmed.

PER CURIAM

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