JUSTO LOPEZ, JR. VS. MICHAEL A. TETI (L-953-12, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-4914-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGELO RICHARDSON, a/k/a ANDREW
RICHARDSON, HASSAN RICHARDSON
and RICKY RICHARDSON,
Defendant-Appellant.
__________________________________________
Submitted November 9, 2016 – Decided March 10, 2017
Before Judges Guadagno and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Union County,
Indictment No. 10-02-0140.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah Terry, Designated
Counsel, on the brief).
Grace H. Park, 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 Angelo Richardson appeals from a Law Division
order entered on March 21, 2014, denying his petition for post-
conviction relief (PCR). Defendant claims he received
ineffective assistance from his trial counsel and his PCR
counsel. Finding no merit to these claims, we affirm.
On November 4, 2009, Hillside police responded to a
residence where a burglar alarm had been activated. Police
observed a man, later identified as defendant, walking away from
the residence carrying a plastic bag. When the officers
identified themselves, defendant fled with jewelry spilling from
the plastic bag as he ran. Defendant was eventually tackled and
placed under arrest.
When police returned to the residence, they noticed a
window in the back door had been broken. The resident of the
home identified jewelry and other items recovered by police from
the bag defendant was carrying.
In 2010, defendant was tried to a jury and convicted of
third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft,
N.J.S.A. 2C:20-3; and fourth-degree resisting arrest by flight,
N.J.S.A. 2C:29-2(a). Defendant was sentenced to an extended
term of ten years imprisonment on the burglary charge, which
merged with the theft charge. Defendant received a consecutive
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eighteen-month sentence on the resisting arrest charge.
Defendant appealed his conviction and sentence.
We affirmed defendant's conviction but remanded for
resentencing as the judge erred in considering an aggravating
factor that defendant committed an offense against a law
enforcement officer. State v. Richardson, No. A-2928-10 (App.
Div. Aug. 2, 2012) (slip op at 10-11). Defendant's petition for
certification was denied. 213 N.J. 535 (2013).
While the certification petition was pending, defendant was
resentenced to the same terms on both counts. Defendant
appealed the resentencing. On June 3, 2013, we heard the matter
on an excessive sentencing oral argument calendar and affirmed.
On November 29 and December 10, 2010, after defendant's
first sentence but before the notice of appeal was filed,
defendant wrote to the Union County criminal division manager
complaining that he received ineffective assistance of trial
counsel.
On April 23, 2013, these two letters were accepted as a PCR
petition and counsel was assigned to represent defendant. On
February 15, 2014, defendant's PCR counsel filed a memorandum of
law in support of defendant's petition. On March 21, 2014,
Judge Scott J. Moynihan heard oral argument on the PCR petition
and denied the petition without a hearing.
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On appeal, defendant raises the following points:
POINT I
THE PCR COURT'S ORDER DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF MUST BE
REVERSED OR THE MATTER REMANDED BECAUSE THE
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN THE PROCEEDINGS BELOW.
A. THE DEFENDANT WAS PREJUDICED BY
TRIAL COUNSEL'S FAILURE TO FILE A
MERITORIOUS MOTION TO DISMISS THE
INDICTMENT. (NOT RAISED BELOW).
B. TRIAL COUNSEL'S FAILURE TO
IMPEACH THE STATE'S POLICE
WITNESSES' CREDIBILITY CONSTITUTES
INEFFECTIVE ASSISTANCE OF COUNSEL.
(NOT RAISED BELOW).
1. TRIAL COUNSEL FAILED TO
IMPEACH DET. RICCI'S
CREDIBILITY WITH THE PRIOR
INCONSISTENT STATEMENTS HE
MADE AT THE GRAND JURY HEARING.
2. TRIAL COUNSEL'S FAILURE TO
ATTACK DET. RICCI AND LT.
KATSOUDAS' CREDIBILITY WITH
THE VARYING INFORMATION
CONTAINED IN PTL. LESHKO'S
REPORT CONSTITUTES INEFFECTIVE
ASSISTANCE OF COUNSEL.
C. TRIAL COUNSEL'S FAILURE TO
INTRODUCE THE TRANSCRIPT OF DET.
RICCI'S GRAND JURY TESTIMONY AS
SUBSTANTIVE EVIDENCE CONSTITUTES
INEFFECTIVE ASSISTANCE OF COUNSEL.
(NOT RAISED BELOW).
D. TRIAL AND PCR COUNSEL FAILED TO
INVESTIGATE AND PRESENT FAVORABLE
EVIDENCE.
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E. TRIAL COUNSEL FAILED TO
ADEQUATELY CONSULT WITH MR.
RICHARDSON.
F. PCR COUNSEL'S FAILURE TO PROPERLY
PRESENT THE ABOVE ISSUES ON POST-
CONVICTION RELIEF AMOUNTS TO
INEFFECTIVE ASSISTANCE OF COUNSEL.
(NOT RAISED BELOW).
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
APPLIED THE PROCEDURAL BAR CONTAINED IN R.
3:22-5 TO DEFENDANT'S INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIMS.
POINT III
THE PCR COURT ABUSED ITS DISCRETION WHEN IT
DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY
HEARING BECAUSE DEFENDANT ESTABLISHED PRIMA
FACIE CASE FOR INEFFECTIVE ASSISTANCE OF
COUNSEL.
We have carefully considered these arguments in light of
the applicable legal principles, and we conclude that they are
without sufficient merit to warrant extensive discussion in a
written opinion. R. 2:11-3(e)(2). We affirm the denial of
defendant's PCR petition substantially for the reasons expressed
in Judge Moynihan's comprehensive oral decision of March 21,
2014.
Affirmed.
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