SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

LEMONT O. LOVE,

Defendant

- Appellant

.

_____________________________

Submitted January 29, 2019

– Decided
Before Judges Hoffman, Suter and Geiger.
On appeal from Super ior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10

- 09

- 1289.

Jo seph 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 pr o se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

M arch 11 , 20192 A

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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 s econd

- 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 per cent 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 pre sented 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 ente red 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.3 A

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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. A fter

an alert went out for their vehicle , t he police apprehended the trio in Spotswood.
The police recovered Sloat's cell phone from the vehicle, and testing co nfirmed
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, Wi lliams , 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 defend ant, 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

Willi ams 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 SEPARATELY4 A

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- 16T4 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 GRAN D 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 UN DER ROBBERY, WAS CONFUSING AND CONTRADICTO RY, 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:5 A

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DEFE NDANT 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 R EPRESENTATION 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 TRIAL6 A

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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 DISCRE TIONARY EXTENDED TERM PURSUANT TO N.J.S.A. 2C:44

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We rejected these arguments and affirmed defendant's conviction s 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

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- 10T1 (App. Div. July 3 1, 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 de nying 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 for th his reasons for
denying PCR. In his opinion, the PCR judge anal yzed and rejected each of
defendant's claims, and concluded none warranted an evidentiary hearing

. This appeal followed , with d efendant 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 CONSTITUTION8 A

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- 16T4 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).9 A

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POINT III

THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING

POINT IV

THE IMPOSITI ON 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 supplement al brief, presenting these

arguments :

POINT I

THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSIS TANCE 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 t o 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.10 A

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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 co urt 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 to ld her, for the first time, that an unidentified female
actually owed defendant the money, not Sloat. Sloat essentially claimed that he11 A

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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 where by 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 mov ed for a Clawans 2

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).12 A

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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 defendan t, 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 properl y
rejected defendant's selective prosecutio n 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 conte ntion that his trial counsel should have requested an
instruction on the law of attempted t heft clearly lacks merit

. T he trial judge did
instruct the jury on the crime of attempt, during the instruction on aggravated

assault.
Before the PCR judge, defenda nt also claim ed 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.13 A

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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 wri tten opinion. R . 2:11

- 3(e)(2).
Affirmed in part, and vacated and remanded in part.