State of New Jersey v. Tony Canty ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1729-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TONY CANTY, a/k/a
TONY R. CANTY, TONY
LEE CANTY, TONY L.
CANTY REDDICK,
TONY REDDING, TONY
RIDDICK, JASON JAMES,
and TONY L. REDDICK,
Defendant-Appellant.
_______________________
Submitted April 10, 2024 – Decided April 22, 2024
Before Judges Firko and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 07-12-1018
and 07-12-1019.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
William C. Daniel, Union County Prosecutor, attorney
for respondent (Michele C. Buckley, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Tony Canty appeals from the trial court's order denying his
petition for post-conviction relief (PCR) based on ineffective assistance of trial
and appellate counsel without an evidentiary hearing. Defendant collaterally
challenges his conviction of multiple counts of first-degree robbery and weapons
offenses. He was ultimately sentenced, after remand, to an aggregate thirty-
five-year term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following points for our consideration:
POINT I
DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR COUNSEL'S
FAILURE TO ADEQUATELY INVESTIGATE HIS
CASE PRIOR TO TRIAL.
A. APPLICABLE LAW.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO PROPERLY INVESTIGATE
DEFENDANT'S CASE WHICH RESULTED IN
THE JURY BEING TAINTED BY EVIDENCE
WRONGFULLY ENTERED AGAINST HIS
INTEREST FOR THE MAJORITY OF THE
TRIAL.
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POINT II
DEFENDANT WAS PREJUDICED BY APPELLATE
COUNSEL'S FAILURE TO CHALLENGE THE
WRONGFUL DENIAL OF HIS SEVERANCE
MOTION BECAUSE A JOINT TRIAL PREDICATED
ANY PLEA OFFER TO INCLUDE TESTIMONY
AGAINST HIS CO-DEFENDANT RESULTING IN
DEFENDANT BEING FORCED TO OFFER FALSE
TESTIMONY (Not Raised Below).
POINT III
DEFENDANT'S PETITION FOR [PCR] SHOULD
NOT BE TIME[-]BARRED BECAUSE
DEFENDANT'S DELAY IN FILING WAS DUE TO
EXCUSABLE NEGLECT AND THE INTERESTS OF
JUSTICE REQUIRE HIS CLAIMS BE HEARD.
We affirm.
I.
To resolve the issues raised in this PCR appeal, we need not discuss the
trial evidence, which is detailed in our unpublished opinion on defendant's direct
appeal. See State v. Canty, Nos. A-2842-10, A-3813-10 (App. Div. Aug. 12,
2013). We briefly summarize the facts to give context to this appeal. The State
presented evidence that one night, defendant, co-defendant Jaquan L. Lee, and
a third individual robbed three groups of persons at gunpoint. One of Lee's
former girlfriends testified that she drove defendant, Lee, and others from one
robbery to another. A second former girlfriend of Lee's testified that she loaned
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Lee the car, which matched the victims' description, including the license plate
number.
Defendant was arrested when the vehicle was stopped, and the police
approached. Inside the car were various items taken in the robberies along with
two sawed-off shotguns armed with shells. Two of the victims identified
defendant in court as one of the perpetrators with a sawed-off shotgun.
Defendant matched the physical description the victims gave, including wearing
a black hoodie and a knotted blue bandana, with a knot in the back of his neck
and the cloth in front, where it could be pulled up to cover his face.
In addition to this evidence, the State disclosed prior to trial that
defendant's DNA was found on one of the stolen cell phones and a Detroit Lions
jacket that police seized from the vehicle. However, during trial, as the State
was near the end of its case, it came to light that, as a result of a transposed
number, the State's DNA report had mistakenly identified defendant as the DNA
contributor when in fact, the DNA on the items belonged to Lee. Defendant was
excluded as a DNA contributor on every item of evidence in which DNA was
sampled.
Lee's trial counsel asked the trial court to exclude the DNA evidence, or
declare a mistrial, arguing it prejudiced her defense. Defendant's counsel argued
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the mistake is probative evidence and was helpful to defendant. Following
argument, the trial court allowed the State's DNA expert to testify that buccal
samples were taken from both defendants; the State tested items that were likely
to yield good DNA samples; and defendant was excluded from the DNA samples
taken from the cell phone and jacket found in the vehicle. The DNA expert did
not testify as to whether the DNA samples matched Lee's DNA.
On July 22, 2021, defendant filed a pro se petition for PCR alleging
ineffective assistance of trial counsel. Defendant claimed it "[c]ame to his
attention from the Office of the Public Defender PCR unit that the State filed a
Giglio/Brady1 letter regarding a witness in [his] case." Appointed PCR counsel
1
In Brady v. Maryland, the Supreme Court held that "the suppression by the
prosecution of evidence favorable to an accused upon request violates
[constitutional principles of] due process . . . ." 373 U.S. 83, 87 (1963).
"[T]o determine whether a Brady violation has
occurred: (1) the evidence at issue must be favorable to
the accused, either as exculpatory or impeachment
evidence; (2) the State must have suppressed the
evidence, either purposely or inadvertently; and (3) the
evidence must be material to the defendant's case."
State v. Brown, 236 N.J. 497, 518 (2019).
In Giglio v. United States, the Supreme Court extended Brady's scope to include
material evidence that would bear upon the credibility of the State's witnesses.
405 U.S. 150, 153-54 (1972). The Court cautioned, however, "[w]e do not . . .
automatically require a new trial whenever 'a combing of the prosecutors ' files
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filed an amended PCR petition 2 alleging trial counsel was ineffective for his
failure to: (1) conduct an adequate investigation; (2) negotiate a plea that was
not contingent on the cooperation of co-defendant Lee; and (3) secure a
severance prior to trial.
After hearing argument, the PCR court rendered an oral opinion denying
defendant's petition without an evidentiary hearing. The PCR court concluded
defendant's petition was time-barred under Rule 3:22-12(a) because it was filed
more than five years following entry of his judgment of conviction (JOC). The
PCR court noted the Rule in part permits the filing of a PCR petition beyond the
after the trial has disclosed evidence possibly useful to the defense but not likely
to have changed the verdict . . . .'" Id. at 154 (quoting United States v. Keogh,
391 F.2d 138, 148 (2d Cir. 1968)). Rule 3:13-3(b)(1) codifies the standards set
forth in Brady and Giglio in our State:
"[E]vidence is material if there is a 'reasonable
probability' that timely production of the withheld
evidence would have led to a different result at trial."
Brown, 236 N.J. at 520 (citing United States v. Bagley,
473 U.S. 667, 682 (1985)). "In deciding materiality,
'we examine the circumstances under which the
nondisclosure arose' and '[t]he significance of a
nondisclosure in the context of the entire record.'" Id.
at 518-19 (alteration in original) (quoting State v.
Marshall, 123 N.J. 1, 199-200 (1991)).
2
The amended PCR petition is not contained in the appendices, but its contents
were summarized by the trial court in its decision.
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five-year deadline where a defendant demonstrates excusable neglect for the late
filing but found defendant failed to assert any explanation to establish excusable
neglect. The PCR court also determined the late filing of the petition would
prejudice the State if the case were retried because crucial evidence and
witnesses "are likely gone and the memories of the incident have almost
certainly dimmed if they have not been completely forgotten," and adhering to
the time-bar prevents uncertainty related to a re-litigation of the matter.
Although the PCR court concluded defendant's petition was time-barred,
it also addressed the merits of defendant's arguments in his pro se and amended
petitions: (1) trial counsel's failure to investigate the claim was not supported
by specified competent evidence that "would have or could have altered the
verdict"; (2) the failure to negotiate a plea also failed because defendant did not
present evidence that trial counsel impaired the plea negotiations; and (3) trial
counsel's failure to file a severance motion should have been made on the direct
appeal.
The PCR court also denied defendant's petition for a new trial based on
newly discovered evidence, finding the evidence defendant referred to was not
material to his defense, and therefore, would not have been considered as
exculpatory. The PCR court reasoned that even if the proffered evidence was
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used to strike the testimony of a State's witness, it would not have affected the
outcome of the trial. A memorializing order was entered. This appeal followed.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. PCR serves the same function as a federal writ of habeas corpus.
State v. Preciose, 129 N.J. 451, 459 (1992). When petitioning for PCR, a
defendant must establish, by a preponderance of the credible evidence, that he
is entitled to the requested relief. Ibid. To sustain this burden, the petitioner
must allege and articulate specific facts, "which, if believed, would provide the
court with an adequate basis on which to rest its decision." State v. Mitchell,
126 N.J. 565, 579 (1992).
To establish an ineffective assistance of counsel claim, a defendant must
demonstrate: (1) "counsel's performance was deficient"; and (2) "the deficient
performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668,
687 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-pronged analysis in New Jersey). "That is, the defendant must
establish, first, that 'counsel's representation fell below an objective standard of
reasonableness' and, second, that 'there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
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different.'" State v. Alvarez, 473 N.J. Super. 448, 455 (App. Div. 2022) (quoting
Strickland, 466 U.S. at 688).
When assessing Strickland's first prong, "[j]udicial scrutiny of counsel's
performance must be highly deferential." 466 U.S. at 669. "Merely because a
trial strategy fails does not mean that counsel was ineffective." State v. Bey,
161 N.J. 233, 251 (1999). Thus, a trial court "must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance," and "the defendant must overcome the presumption that, under the
circumstances, the challenged action [by counsel] 'might be considered sound
trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)).
Under Strickland's second prong, the defendant must show "the deficient
performance prejudiced the defense." Id. at 687. That is, "counsel's errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable." Ibid. It is insufficient for the defendant to show the errors "had some
conceivable effect on the outcome." Id. at 693. Ultimately, "[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if [it] had no effect on the judgment." Id. at
691.
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Claims of ineffective assistance of appellate counsel must assert that
errors existed at the trial level that could have been ascertained by appellate
counsel's review of the record, but were never raised as issues on appeal. See
State v. Echols, 199 N.J. 344, 359-61 (2009). To obtain a new trial based on
ineffective assistance of appellate counsel, it must be established that appellate
counsel failed to raise an issue that would have constituted reversible error on
direct appeal. See id. at 361. Appellate counsel will not be found ineffective if
counsel's failure to appeal the issue could not have prejudiced the defendant
because the appellate court would have found either, that no error had occurred
or that it was harmless. State v. Reyes, 140 N.J. 344, 365 (1995); see also State
v. Harris, 181 N.J. 391, 499 (2004).
Further, "[a]ny factual assertion that provides the predicate for a claim of
relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and
based upon personal knowledge of the declarant before the court may grant an
evidentiary hearing." R. 3:22-10(c); see State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999).
Short of obtaining immediate relief, a defendant may show that an
evidentiary hearing is warranted to develop the factual record in connection with
an ineffective assistance claim. Preciose, 129 N.J. at 462-63. The mere raising
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of a claim for PCR does not entitle the defendant to an evidentiary hearing.
Cummings, 321 N.J. Super. at 170. Rather, "[i]f the court perceives that holding
an evidentiary hearing will not aid the court's analysis of whether the defendant
is entitled to [PCR], . . . then an evidentiary hearing need not be granted." State
v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted).
The PCR court should grant an evidentiary hearing only when: "(1) the
defendant establishes a prima facie case in support of PCR; (2) the court
determines that there are disputed issues of material fact that cannot be resolved
by review of the existing record; and (3) the court determines that an evidentiary
hearing is required to resolve the claims asserted." State v. Vanness, 474 N.J.
Super. 609, 623 (App. Div. 2023) (citing State v. Porter, 216 N.J. 343, 354
(2013)).
"Where, as here, the PCR court has not conducted an evidentiary hearing,
we review its legal and factual determinations de novo." State v. Aburoumi, 464
N.J. Super. 326, 338 (App. Div. 2020); see also State v. Nash, 212 N.J. 518,
540-41 (2013). However, "we review under the abuse of discretion standard the
PCR court's determination to proceed without an evidentiary hearing." State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing Marshall, 148 N.J.
at 157-58).
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Rule 3:22-12 prescribes the time limitations for filing first petitions for
PCR. Pertinent here, the Rule generally provides that "no petition shall be filed
. . . more than [five] years after the date of the entry . . . of the judgment of
conviction (JOC) that is being challenged." R. 3:22-12(a)(1). 3
There are two exceptions to the five-year time limitation. First, the five-
year time limitation does not apply where the PCR petition "alleges facts
showing that the delay beyond said time was due to defendant's excusable
neglect and that there is a reasonable probability that if . . . defendant's factual
assertions were found to be true enforcement of the time-bar would result in a
fundamental injustice." R. 3:22-12(a)(1)(A). Second, the five-year limitation
does not apply where the PCR petition "alleges a claim for relief as set forth in
[Rule 3:22-12(a)(2)(A) or (a)(2)(B)] and is filed within the one-year period set
forth in [Rule 3:22-12(a)(2)]." R. 3:22-12(a)(1)(B).
Defendant filed his petition on July 22, 2021, more than five years after
the JOC. He did not contend one of the exceptions applied. For the first time
on appeal, defendant asserts his petition should not be time-barred because there
3
Defendant's original JOC was entered on September 7, 2010. The amended
JOC was entered on September 20, 2013. In State v. Dugan, we held that a
defendant must file his petition "within five years of whatever judicial action he
is attacking." 289 N.J. Super. 15, 19-21 (App. Div. 1996).
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is no record that he was advised of his PCR rights and applicable filing time
limits, which he claims constitutes excusable neglect under the first Rule 3:22-
12 exception.
"Excusable neglect provides the means for a court to address and correct
a criminal judgment where 'adherence to it would result in an injustice.'" State
v. Norman, 405 N.J. Super. 145, 159 (App. Div. 2009) (quoting State v.
McQuaid, 147 N.J. 464, 485 (1997)). To establish "excusable neglect" under
Rule 3:22-12(a)(1)(A), a defendant must demonstrate "more than simply
providing a plausible explanation for a failure to file a timely PCR petition."
Ibid.In assessing whether a defendant has demonstrated excusable neglect, a
court must weigh "the extent of the delay," "the purposes advanced by the five -
year rule," "the nature of defendant's claim[,] and the potential harm . . .
realized" by defendant, State v. Murray, 162 N.J. 240, 251 (2000) (citing
Mitchell, 126 N.J. at 580), as well as the "cause of the delay, the prejudice to
the State, and the importance of the [defendant's] claim in determining whether
there has been an 'injustice' sufficient to relax the time limits," Norman, 405 N.J.
Super. at 159 (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).
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"Ignorance of the law and rules of court does not qualify as excusable
neglect," State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd, 365
N.J. Super. 82 (App. Div. 2003) (citing Murray, 162 N.J. at 246), and a
defendant's decision to "remain intentionally ignorant of . . . legal consequences"
does not support a finding of excusable neglect, State v. Brown, 455 N.J. Super.
460, 471 (App. Div. 2018).
Measured against these principles, defendant's petition and amended
petition—filed eight years after his conviction—do not support a finding of
excusable neglect. As we have explained, defendant failed to assert any
explanation to establish excusable neglect under Rule 3:22-12(a)(1). Defendant
makes a bald assertion that he was unaware and uninformed of his right to file a
PCR petition, but as the PCR court aptly noted, defendant failed to submit a
certification or affidavit in support of his claim. More than simply a "plausible
explanation" is required, as determined by the PCR court.
Moreover, even considering defendant's excusable neglect argument,
which was not raised before the PCR court, 4 there is still not a sufficient basis
4
It is well settled that we will not consider questions or issues not raised at trial
unless the questions raised pertain to the trial court's jurisdiction or concern a
matter of great public interest. State v. Robinson, 200 N.J. 1, 20 (2009). But
this "limitation on the scope of appellate review is not absolute." Ibid. "[O]ur
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shown to relax the time restraints because of the severe prejudice to the State.
See Brewster, 429 N.J. Super. at 400 ("If excusable neglect for late filing of a
petition is equated with incorrect or incomplete advice, long-convicted
defendants might routinely claim they did not learn about the deficiencies in
counsel's advice on a variety of topics until after the five-year limitation period
had run."). The crimes occurred in 2007, almost seventeen years ago, and
memories of witnesses, if they can even be located, have likely faded or are
completely forgotten. The goal of Rule 3:22-12(a)(1) is achieved to ensure the
finality of this matter and any uncertainty with regard to a potential re-trial. The
PCR court was correct in its analysis.
III.
Defendant next argues his trial counsel was ineffective for failing to
investigate his case. In his PCR petitions, defendant did not specify any facts
in support of this claim and only broadly claimed trial counsel was ineffective
trial and appellate courts are empowered . . . to acknowledge and address trial
error if it is 'of such a nature as to have been clearly capable of producing an
unjust result.'" Ibid. (quoting R. 1:7-5). "Further, our appellate courts retain the
inherent authority to 'notice plain error not brought to the attention of the trial
court[,]' provided it is 'in the interests of justice' to do so." Ibid. (quoting R.
2:10-2).
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for not investigating his case, and was "unprepared." Accordingly, the PCR
court rejected this claim, finding defendant "failed to provide any specific and
competent evidence that if an investigation was properly performed, it would
have revealed evidence that would have or could have altered the verdict."
Therefore, defendant's argument is flawed and procedurally barred.
On appeal, defendant presents the argument for the first time that trial
counsel was ineffective for failing to investigate the State's proofs against him
relative to the DNA evidence and "led to the erroneous belief" he had to defend
the "erroneous evidence" linking him to the crimes. Defendant argues he was
prejudiced by the incorrect DNA evidence, which his trial counsel "failed to
uncover" before trial, and that trial counsel should not have relied on the expert
DNA report as written. Defendant further avers that no curative instruction
could have corrected the injustice that occurred late in the proceedings.
Defendant failed to raise this argument in his PCR petitions, and we
therefore reject it. Robinson, 200 N.J. at 20. The DNA mix-up caused by the
transposition of identifying numbers for defendant and Lee did not undermine
the defense strategy. While the error was discovered nine days into trial,
defendant presents no evidence that the error could have been found by his trial
counsel before the trial started. Moreover, even though it was initially thought
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that defendant's DNA was found inside the car, trial counsel effectively argued
he was not connected to the robberies beyond merely standing near the legally
parked car used in the crimes, and he did not have any proceeds on his person.
And, it was always known that defendant's fingerprints were not discovered
anywhere on the car or on any of the items inside the car. Thus, the defense
strategy was not prejudiced by a failure to investigate the DNA evidence.
The theory of defendant's case did not have to be revisited as he contends.
In fact, the State's DNA expert ultimately testified that defendant's DNA was
not found in the car, which cured any potential prejudice because it corroborated
trial counsel's claims that defendant was not forensically linked to the car. And,
trial counsel's failure to seek a mistrial did not result in prejudice because co -
defendant Lee's attorney requested a mistrial, which was denied. We are
convinced defendant was not denied his constitutional right to effective
assistance of trial counsel under either Strickland/Fritz prong.
IV.
Finally, defendant argues that his appellate counsel was ineffective for
failing to challenge the wrongful denial of his severance motion because a joint
trial predicated any plea offer to include testimony against co-defendant Lee
resulting in defendant offering "false" testimony. Again, we disagree.
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Defendant raises this issue for the first time on appeal and is procedurally
barred. Robinson, 200 N.J. at 20. However, we will address defendant's
argument.
"Two or more defendants may be tried jointly 'if they are alleged to have
participated in the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.'" State v. Brown, 170 N.J. 138,
159-60 (2001) (quoting R. 3:7-7). Courts generally prefer to try co-defendants
jointly, "particularly when 'much of the same evidence is needed to prosecute
each defendant.'" Id. at 160 (quoting State v. Brown, 118 N.J. 595, 605 (1990)).
"That preference is guided by a need for judicial efficiency, to accommodate
witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more
accurate assessment of relative culpability." Ibid.A single joint trial, however, may not take place at the expense of a
defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 290 (1996).
When considering a motion for severance, a trial court should "balance the
potential prejudice to defendant's due process rights against the State's interest
in judicial efficiency." Brown, 118 N.J. at 605 (quoting State v. Coleman, 46
N.J. 16, 24 (1965)). Trial courts apply a rigorous test for granting severance.
Brown, 170 N.J. at 160. A mere claim of prejudice is insufficient to support a
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motion to sever. State v. Moore, 113 N.J. 239, 274 (1988). A defendant does
not have the right to severance simply because he or she believes a separate trial
"would offer defendant a better chance of acquittal." State v. Johnson, 274 N.J.
Super. 137, 151 (App. Div. 1994) (quoting State v. Morales, 138 N.J. Super.
225, 231 (App. Div. 1975)).
Our review of a motion to sever is limited. The decision to sever rests
within the trial court's discretion. State v. Weaver, 219 N.J. 131, 149 (2014).
We defer to the trial court's decision on a severance motion unless it constitutes
an abuse of discretion. Ibid.Here, defendant moved to sever based on potential prejudice arising from
gang affiliation. The trial court considered that argument in denying the motion
to sever reasoning such a risk could be cured by a jury instruction.
Subsequently, the trial court ruled that the witnesses would not be permitted to
mention gang affiliation. On appeal, defendant is not claiming that the denial
prejudiced defendant because of gang affiliation. Instead, defendant claims: (1)
the motion to sever should have been granted because there the evidence did not
tie him to the crimes; and (2) he was prejudiced by being tried with Lee.
However, the record does tie defendant to the crimes because: (1) victims
from the robberies had similar descriptions of defendant's appearance—wearing
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a black hoodie, jeans, and a blue bandana; (2) Sade Ingram identified defendant
as the person she picked up and who committed the robberies with Lee; and (3)
the police observed defendant in a group with Lee and Ingram near the car
shortly after the third robbery and apprehended him. Therefore, we are satisfied
that the severance motion was properly denied because the record sufficiently
tied defendant to the crimes, and he fails to establish the prima facie elements—
deficient performance and prejudice resulting from the deficiency—that his
appellate counsel was ineffective for not raising this issue on appeal.
Moreover, defendant's claim that joinder prevented him from accepting
the State's plea offer without having to testify against Lee and without the offer
being contingent upon Lee's acceptance is also unsupported by the record. The
plea offer was predicated on each party testifying against their respective co-
defendant, which we held Lee recognized as a continuing requirement of the
pre-trial plea offer after the DNA mix-up. State v. Lee, No. 3209-17 (App. Div.
June 1, 2020) (slip op. 6) ("[Lee] insisted he would have accepted the plea offer,
including testifying against Canty, if necessary.").
Given the plea offer was always contingent, we noted "[w]hen co-
defendant Lee rejected the offer, the State was under no obligation to extend a
separate or different offer to defendant. In essence, because Lee did not want to
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accept the terms of the plea agreement, it resulted in the plea not being available
to . . . defendant." Further, defendant's claim that the plea offer required him to
give "false" testimony is also negated by the record because, for the same
reasons, the record tied defendant to the crimes, he was also tied to Lee and
therefore could not claim to not know Lee, or have been near the car, or
committed the robberies.
Affirmed.
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