STATE OF NEW JERSEY VS. LEMONT O. LOVE (10-09-1289, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5367-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEMONT O. LOVE,
Defendant-Appellant.
_____________________________
Submitted January 29, 2019 – Decided March 11, 2019
Before Judges Hoffman, Suter and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 10-09-
1289.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the briefs).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Lemont Love appeals from a May 31, 2017 Law Division order
denying his petition for post-conviction relief (PCR). We affirm.
In 2011, a jury found defendant and his co-defendant, Randy Williams,
guilty of second-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary,
N.J.S.A. 2C:18-2; and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
The trial judge sentenced defendant to an aggregate term of twelve years of
imprisonment with an eighty-five percent period of parole ineligibility, pursuant
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also
ordered defendant to serve a five-year term of parole supervision, after
completing his prison term.
We briefly summarize the evidence presented at trial. Darin Sloat owed
defendant a significant amount of money. On the morning of February 17, 2010,
Sloat was staying at a motel in East Brunswick with his girlfriend, K.E., and her
ten-month-old son, when defendant and two co-defendants entered the room and
attacked Sloat. Defendant stomped and kicked Sloat, co-defendant Randy
Williams punched Sloat in the head and neck, and co-defendant Charles Opher
punched Sloat in the lower back.
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Following the assault, defendant, Williams, and Opher ran out of the motel
room, taking Sloat's cell phone with them, and fleeing in a silver Pontiac. After
an alert went out for their vehicle, the police apprehended the trio in Spotswood.
The police recovered Sloat's cell phone from the vehicle, and testing confirmed
the presence of blood on defendant's sneakers. The police transported
defendant, Williams, and Opher to the police station, where East Brunswick
police also brought Sloat to see if he could identify the persons who assaulted
him. As defendant, Williams, and Opher stepped out of the police vehicle, one
by one, Sloat identified each one as participating in the assault. Sloat then gave
a statement to the police. Sloat testified to these events at trial.
A Middlesex County grand jury indicted defendant, Williams, and Opher
on charges of robbery, burglary, and aggravated assault. Opher resolved his
charges through a plea agreement, which called for him to testify against
defendant and Williams. At trial, Opher testified that he, defendant, and
Williams each hit or stomped Sloat. K.E. also testified that she saw all three
defendants "kicking [Sloat] and punching him in the head and the back."
On direct appeal, defendant raised the following issues:
POINT I
THE JUROR'S CONTACT WITH DEFENDANT
OUTSIDE THE COURTROOM, IN A SEPARATELY
A-5367-16T4
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SECURED HALLWAY, WHILE HE WAS IN
HANDCUFFS AND IN THE CUSTODY OF
SHERIFF'S OFFICERS, DEPRIVED HIM OF A FAIR
TRIAL BY AN IMPARTIAL JURY U.S. CONST.
AMEND. XIV; N.J. CONST. (1947) ART. I, [¶] 1, 9,
10.
POINT II
THE PROSECUTOR'S ARGUMENT IN HER
CLOSING STATEMENT, THAT THE THEFT
COMPONENT OF THE ROBBERY CHARGE WAS
RELATED TO AN ATTEMPT TO COLLECT
MONEY THAT SLOAT OWED TO LOVE, WAS A
THEORY OF ROBBERY THAT WAS NEVER
PRESENTED TO THE GRAND JURY.
DEFENDANT'S CONVICTION FOR ROBBERY,
THEREFORE, MUST BE VACATED.
POINT III
THE COURT'S RESPONSE TO THE JURY'S
QUESTION, THAT THEY MAY CONSIDER THE
THEFT OF SLOAT'S CELL PHONE AS A LESSER-
INCLUDED CHARGE UNDER ROBBERY, WAS
CONFUSING AND CONTRADICTORY, AND
DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV
BECAUSE THE STATE FAILED TO PRESENT
SUFFICIENT FACTS AT TRIAL, DEFENDANT'S
CONVICTION FOR ROBBERY MUST BE
VACATED.
In his pro se brief, defendant raised the following additional points:
A-5367-16T4
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POINT I
DEFENDANT WAS DENIED [A] FAIR TRIAL AND
DUE PROCESS OF LAW IN VIOLATION OF THE
U.S. CONST. AMENDS. V, VI, AND XIV AND N.J.
CONST. (1947) ART. I, [¶] 1, 8, 9 AND 10 BECAUSE
THE MATERIAL VARIANCE BETWEEN THE
GRAND JURY PROSECUTOR'S
REPRESENTATION THAT THE FIRST[-]DEGREE
ROBBERY WAS BASED ON THE TAKING OF MR.
SLOAT'[S] CELLPHONE AND THE TRIAL
PROSECUTOR'S REPRESENTATION THAT THE
FIRST[-]DEGREE ROBBERY WAS BASED ON
MONEY THAT DEFENDANT THOUGHT MR.
SLOAT HAD OWED HIM.
POINT II
THE JURY CHARGE WAS PREJUDICIALLY
DEFECTIVE BECAUSE THE TRIAL COURT'S
INSTRUCTIONS WERE MISLEADING AND
CONTRARY TO THE ROBBERY CHARGE
DEFENDANT WAS INDICTED FOR. U.S. CONST.
AMENDS. V, VI, XIV AND N.J. CONST. (1947)
ART. I., [¶] 1, 8, 9 AND 10.
POINT III
DEFENDANT WAS DENIED A FAIR TRIAL AND
DUE PROCESS OF LAW IN VIOLATION OF THE
U.S. CONST. AMENDS. VI AND XIV AND N.J.
CONST. (1947) ART. I., [¶] 1, 8, 9 AND 10 BECAUSE
THE MATERIAL VARIANCE BETWEEN THE
GRAND JURY PROSECUTOR'S
REPRESENTATION THAT THE SECOND[-
]DEGREE BURGLARY WAS FOR THE PURPOSE
OF ROBBING DARREN SLOAT OF CELL PHONE
AND THE TRIAL
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PROSECUTOR'S REPRESENTATION THAT THE
ROBBERY WAS BASED ON MONEY THAT
DEFENDANT THOUGHT MR. SLOAT HAD OWED
HIM.
POINT IV
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL WHEN HIS
ATTORNEY FAILED TO FILE A CLEARLY
MERITORIOUS MOTION TO SUPPRESS THE CELL
PHONE WHICH WAS ILLEGALLY SEIZED
WITHOUT A SEARCH WARRANT. U.S. CONST.
AMENDS. VI, XIV; AND N.J. CONST. (1947) ART.
I, [¶] 8, 9, 10.
POINT V
DEFENDANT'S MOTION FOR A JUDGMENT OF
ACQUITTAL AND NEW TRIAL ON ALL COUNTS
IN THE INDICTMENT SHOULD HAVE BEEN
GRANTED IN THE INTEREST OF JUSTICE.
POINT VI
THE CUMULATIVE ERRORS IN POINTS I, II, III,
IV, AND V, ABOVE THAT OCCURRED DURING
THE DEFENDANT'S TRIAL RENDERED THE
UNDERLYING TRIAL UNFAIR.
POINT VII
DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE
THE COURT FAILED TO CONSIDER WHETHER
TO IMPOSE THE DISCRETIONARY EXTENDED
TERM PURSUANT TO N.J.S.A. 2C:44-3.
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We rejected these arguments and affirmed defendant's convictions and
aggregate sentence; however, we remanded for the trial court to merge
defendant's aggravated assault conviction into his armed robbery conviction.
State v. Love, No. A-5409-10T1 (App. Div. July 31, 2014) (slip op. at 27). Our
Supreme Court denied certification. State v. Williams, 220 N.J. 269 (2015).
In March 2015, defendant filed the PCR petition under review. After
assigned counsel filed a brief on defendant's behalf, defendant discharged his
attorney. On October 20, 2016, the PCR judge heard extensive oral argument
from defendant in support of his petition. On May 31, 2017, the PCR judge
entered an order denying PCR without an evidentiary hearing, and noted, "This
[o]rder will be supplemented by a written opinion." On August 9, 2017, the
PCR judge issued a twenty-one page opinion setting forth his reasons for
denying PCR. In his opinion, the PCR judge analyzed and rejected each of
defendant's claims, and concluded none warranted an evidentiary hearing.
This appeal followed, with defendant presenting the following arguments:
POINT I
THE DEFENDANT WAS DENIED THE RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART.
1, PAR. 10 OF THE NEW JERSEY CONSTITUTION
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A. Trial and Appellate Counsel Improperly
Permitted Their Client to be Convicted Without
Complete and Accurate Instructions on the Law
1. The Trial Court Erroneously Instructed
Jurors that They Could Convict the Defendant of
Robbery Based on an Attempted Theft Without
an Instruction on that Essential Element of the
Crime
2. Trial and Appellate Counsel Should Have
Raised the Issue of a Clawans[1] Charge
B. Trial Counsel Failed to Investigate the Case
Adequately
C. Trial Counsel Failed to File Defense Motions
1. Trial Counsel Failed to File a Motion to
Suppress Evidence
a. The Defendant's Sneakers Should
Have Been Suppressed
b. The Cell Phone Seized from
Defendant's Vehicle Should Have Been
Suppressed
2. Trial Counsel Failed to File a Motion to
Dismiss the Indictment Due to Selective
Prosecution
POINT II
THE TRIAL JUDGE, WHO HAD PREVIOUSLY
BEEN RESPONSIBLE FOR THE PROSECUTION OF
1
State v. Clawans, 38 N.J. 162 (1962).
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THE DEFENDANT AS THE MIDDLESEX COUNTY
PROSECUTOR, SHOULD HAVE RECUSED
HIMSELF FROM THE TRIAL
POINT III
THE DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING
POINT IV
THE IMPOSITION OF A FIVE-YEAR PERIOD OF
PAROLE SUPERVISION UPON RELEASE FOR THE
COMMISSION OF A SECOND-DEGREE CRIME IS
ILLEGAL
Defendant also filed a pro se supplemental brief, presenting these
arguments:
POINT I
THE DEFENDANT WAS DENIED HIS RIGHT TO
EFFECTIVE ASSISTANCE OF TRIAL AND
APPELLATE COUNSEL IN VIOLATION OF THE
SIXTH AMEN[D]MENT TO THE UNITED STATES
CONSTITUTION AND ART. 1 PAR. 10 OF THE
NEW JERSEY CONSTITUTION
a. Trial counsel failed to file meritorious motions
1. Trial counsel failed to file a motion to
suppress the cell[]phone found in the defendant's
vehicle that belonged to the victim.
2. Trial counsel failed to file a motion to
dismiss the indictment based on
selective/malicious prosecution.
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POINT II
THE STATE'S MISCONDUCT IN THE
PRESENTATION OF A FALSE CASE TO THE JURY
VIOLATED DEFENDANT'S RIGHTS TO A FAIR
TRIAL IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ART. 1 PARS. 1
AND 10 OF THE NEW JERSEY CONSTITUTION
II
We agree with defendant's argument that the trial court should have
ordered a three-year period of parole supervision, instead of the five-year term
of parole supervision, upon completion of his prison term. We therefore vacate
that aspect of defendant's judgment of conviction and direct the court to enter
an amended judgment of conviction imposing a three-year period of mandatory
parole supervision, upon completion of defendant's prison term. We find no
merit in defendant's remaining arguments and affirm substantially for the
reasons stated by the PCR judge in his comprehensive written opinion. We add
the following comments.
During a pretrial hearing, the assistant prosecutor reported to the trial
judge that she had talked to Sloat for the first time since the grand jury
proceedings, and he told her, for the first time, that an unidentified female
actually owed defendant the money, not Sloat. Sloat essentially claimed that he
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brokered a drug deal between the woman and defendant, and that she ripped
defendant off, and defendant blamed Sloat for the incident. To his credit,
defendant's trial counsel objected, stating the evidence is "highly prejudicial,"
as the evidence would "tell the jury [defendant] sold some drugs to some girl"
and the evidence further "might be related somehow to the motive." The trial
judge agreed, and a compromise was made whereby no mention of the female
or drugs would occur at trial, but the State could assert that defendant was
seeking to collect money from Sloat.
Defendant argues that his trial counsel should have moved for a Clawans2
charge, "authoriz[ing] defendant to draw an adverse inference against the State
during summation based on the State's failure to produce a witness with relevant
evidence of the facts . . . ." According to defendant, "[s]ince the girl was the
lynchpin of the State's case, the State had an obligation to produce her."
However, defendant also asserts that "the defense contended that there was no
drug deal, no money owed, and no girl." Defendant's argument is clearly
convoluted and meritless – if there was no girl, then there was no witness that
the State failed to produce. Moreover, nothing regarding the girl or the drug
deal was admitted at trial, invalidating defendant's claim that it was the
2
State v. Clawans, 38 N.J. 162, 171 (1962).
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"lynchpin" of the State's case. In addition, defendant presented no argument as
to how he was prejudiced by his counsel's alleged error.
Defendant's petition alleged his trial counsel provided ineffective
assistance because he failed to raise the issue of selective prosecution.
According to defendant, his trial counsel should have pursued a selective
prosecution claim based upon his contention that the attack at the motel was the
fault of his girlfriend at the time, J.S., a Caucasian. The PCR judge properly
rejected defendant's selective prosecution claim because there was no evidence
that J.S. was involved in the robbery. In fact, the judge noted the evidence
produced at trial showed that J.S. feared defendant. If defendant wanted to call
J.S. as a witness, he could have done so.
Defendant's contention that his trial counsel should have requested an
instruction on the law of attempted theft clearly lacks merit. The trial judge did
instruct the jury on the crime of attempt, during the instruction on aggravated
assault.
Before the PCR judge, defendant also claimed the trial judge should have
recused himself because the judge previously served as the Middlesex County
Prosecutor from 1998 to 2002, when defendant was prosecuted for other crimes.
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The PCR judge correctly rejected this claim since the trial judge did not
personally participate in defendant's prior case, which concerned indictments
from 1998. Defendant's remaining arguments lack sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part, and vacated and remanded in part.
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