                                NOT FOR PUBLICATION WITHOUT THE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.




                                                                         A-5367-16T4
                                       2
      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
                                         3
            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
                                        4
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

                                                    A-5367-16T4
                       5
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.



                                               A-5367-16T4
                     6
      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


                                                                       A-5367-16T4
                                      7
              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).
                                                                      A-5367-16T4
                                        8
             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.

                                                                      A-5367-16T4
                                       9
            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

                                                                        A-5367-16T4
                                      10
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).
                                                                         A-5367-16T4
                                       11
"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.




                                                                          A-5367-16T4
                                       12
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.




                                                                      A-5367-16T4
                                      13
