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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1989-07T41989-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES NOBLE,
Defendant-Appellant.
Submitted October 28, 2009 - Decided
Before Judges Axelrad and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment
No. 95-01-0101.
Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson,
Designated Counsel, of counsel and on the brief).
Paula T. Dow, Essex County Prosecutor, attorney for respondent (Jennifer C. Fetterman,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted in September 1995 on the following charges: (1) first-degree robbery, N.J.S.A. 2C:5-2 and
153 N.J. 52 (1998).
Defendant filed a petition for post-conviction relief on October 30, 2000. In his pro se petition, defendant
alleged that he was denied the effective assistance of counsel and that he was denied a fair trial. His counsel alleged
that defendant's arrest was predicated upon invalid warrants and specified several grounds for ineffective assistance
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a1989-07.opn.html
of counsel. The PCR was heard and denied on May 8, 2006. In this appeal, defendant raises the following issues:
POINT I
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL,
DIRECT APPEAL AND POST-CONVICTION RELIEF ATTORNEYS, CULMINATING IN HIS
CONVICTION AND DENIAL OF HIS DIRECT APPEAL AND POST-CONVICTION RELIEF
PETITION IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
A. BECAUSE THE APPELLATE ATTORNEY IN THE DIRECT APPEAL AND PCR
COUNSEL BOTH FAILED TO RAISE THE ISSUE OF THE PROSECUTOR'S
IMPROPER REMARKS DURING SUMMATION SUGGESTING THAT THE
DEFENDANT TAILORED HIS TESTIMONY WITH RESPECT TO THE SEX
CRIMES OFFENSES, THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL. (NOT RAISED BELOW).
B. BECAUSE THE POLICE METHODS USED TO GATHER THE
IDENTIFICATION EVIDENCE WERE UNDULY SUGGESTIVE AND NOT
SUFFICIENTLY RELIABLE THEREBY VIOLATING THE DEFENDANT'S DUE
PROCESS RIGHTS UNDER THE FEDERAL AND NEW JERSEY
CONSTITUTIONS, A WADE HEARING SHOULD HAVE BEEN CONDUCTED
BEFORE TRIAL BUT WAS NOT AND THE FAILURE TO RAISE THIS ISSUE IN
THE DIRECT APPEAL AND IN THE POST-CONVICTION RELIEF
PROCEEDINGS WAS INEFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED
BELOW).
C. THE APPELLATE ATTORNEY IN THE DIRECT APPEAL PREMATURELY AND
IMPROPERLY RAISED SOME OF THE INEFFECTIVE ASSISTANCE OF
COUNSEL ISSUES WHILE NEGLECTING TO ADDRESS OTHER
CONSTITUTIONALLY SIGNIFICANT POINTS. (NOT RAISED BELOW).
D. BECAUSE THE ARREST WARRANTS WERE INVALID, THE DEFENDANT'S
CONVICTIONS MUST BE SET ASIDE.
POINT II
THIS CASE SHOULD BE REMANDED BACK TO THE PCR COURT AND NEW COUNSEL
ASSIGNED TO REPRESENT THE DEFENDANT SO THAT THE INEFFECTIVE ASSISTANCE OF
COUNSEL ISSUES CAN BE PROPERLY BRIEFED AND EXPLORED AS PART OF A
COMPREHENSIVE EVIDENTIARY HEARING.
POINT III
THE SENTENCE IMPOSED WAS ILLEGAL AND MUST BE VACATED.
POINT VI
REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE
ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.
We find these arguments to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We add only the following brief comments.
Although defendant made the argument that he was denied the effective assistance of counsel in his PCR
petition, the grounds alleged for that claim differed substantially from those now asserted on appeal. Specifically,
defendant now argues that his trial counsel was ineffective in failing to object to the prosecutor's comments in
summation that he had tailored his testimony and failing to request a Wade hearing. He also argues for the first
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time on appeal that his appellate counsel was ineffective in prematurely raising some ineffective assistance claims
and failing to address other constitutionally significant points. This court does not entertain exceptions raised for
the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973). However, we are satisfied from our review of the record that defendant failed to make a prima facie showing
of ineffectiveness of trial counsel required by the standard formulated in Strickland v. Washington, 466 U.S. 668, l 04
S. Ct. 2052, 80 L. Ed.2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987) to warrant
an evidentiary hearing on his claims. See R. 3:22-10(a); State v. Goodwin, 173 N.J. 583, 596 (2002); State v. Preciose,
129 N.J. 451, 462 (1992).
Defendant also argues that his conviction must be reversed because the warrants issued for his arrest were
signed by a police lieutenant and not a judicial officer. This argument is both procedurally barred and lacking in
merit. "[O]bjections based on defects in the institution of the prosecution" must be raised before trial and the failure
to do so constitutes a waiver of the defense. R. 3:10-2(c). Moreover, this issue was fully capable of being raised on
direct appeal and is therefore also procedurally barred pursuant to Rule 3:22-4. In any event, the argument lacks
merit as the police lieutenant was authorized to sign complaints. R. 3:2-1; 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d
1149 (1967).
(continued)
(continued)
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A-1989-07T4
April 20, 2010
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