                                NOT FOR PUBLICATION WITHOUT THE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-0156-16T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

LOUIS LUIBIL,

     Defendant-Appellant.
_____________________________

                    Argued September 20, 2018 – Decided October 9, 2018

                    Before Judges Nugent and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 03-04-0383.

                    John Vincent Saykanic argued the cause for appellant.

                    Ali Y. Ozbek, Assistant Prosecutor, argued the cause
                    for respondent (Camelia M. Valdes, Passaic County
                    Prosecutor, attorney for respondent; Tom Dominic
                    Osadnik, Assistant Prosecutor, of counsel and on the
                    brief).

PER CURIAM
      Convicted by a jury in 2003 of first-degree carjacking, N.J.S.A. 2C:15-

2(a)(1), and sentenced by the trial judge to an extended prison term of thirty-

four years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, defendant,

Louis Luibil, appeals an order denying his second petition for post-conviction

relief (PCR). We affirm.

      This case has a lengthy procedural history.       In our opinion rejecting

defendant's direct appeal, we summarized the facts underlying his conviction:

            On November 26, 2002, John Juby took his mother to a
            shopping center in Totowa. Mrs. Juby, who ambulates
            with the assistance of a walker, waited by the curb
            while her son got their car, a Taurus. He returned, left
            the car in idle and got out to help her into the passenger
            seat. While John Juby was loading the walker and
            packages into the trunk, defendant jumped into the
            driver's seat. Mrs. Juby had not yet pulled her legs
            around and into the car, and defendant jerked the car
            back-and-forth in an apparent effort to unseat her.
            When he was not successful, he drove away. Mrs. Juby
            was ejected and dragged a short distance. Neither John
            Juby nor Mrs. Juby were able to give the police more
            than a general description of the assailant.

            The day after the carjacking, the police contacted
            defendant's sister and notified her that her car had been
            found abandoned in the parking lot of the same
            shopping center. There was no fuel in the tank. The
            day before the carjacking, she had loaned it to her
            brother.

            Two days after the carjacking, defendant approached
            Irma Nieves in the parking lot of a supermarket. She

                                                                         A-0156-16T3
                                        2
      watched as he left the lot in a Taurus. Defendant was
      apprehended minutes later. A Belleville police officer
      saw him drive the Taurus over a double-yellow line
      while passing a bus. He attempted to follow the car's
      route and found it parked and unoccupied about eight
      blocks away. A second officer apprehended defendant.
      He eventually admitted that he had been driving the
      Taurus on the day of his arrest, but he denied knowing
      anything about the Jubys. An observant bystander who
      had witnessed defendant take the Jubys' car identified
      him as Mrs. Juby's assailant.

      [State v. Luibil, No. A-6762-03 (App. Div. Nov. 14,
      2005) (slip op. at 2), certif. denied, 186 N.J. 245
      (2006).]

On direct appeal, we rejected these arguments defendant raised:

      I. THE TRIAL COURT ERRED IN DENYING
      DEFENSE COUNSEL'S MOTION FOR A MISTRIAL
      AS A RESULT OF TESTIMONY VOLUNTEERED
      BY A STATE'S WITNESS WHICH TENDED TO
      CONNECT THE DEFENDANT WITH OTHER,
      UNRELATED CRIMINAL CONDUCT.

      II. THE PROSECUTOR'S SUMMATION EXCEEDED
      THE BOUNDS OF PROPRIETY. (PARTIALLY
      RAISED BELOW).

      III. THE TRIAL COURT ERRED IN RULING THAT
      THE DEFENDANT'S PRIOR CONVICTIONS WERE
      ADMISSIBLE TO ATTACK CREDIBILITY. (NOT
      RAISED BELOW).

      IV. THE DISCRETIONARY 34 YEAR EXTENDED
      TERM IMPOSED BY THE TRIAL COURT WAS
      UNCONSTITUTIONAL SINCE IT EXCEEDED THE


                                                                  A-0156-16T3
                                3
             MAXIMUM SENTENCE AUTHORIZED BY THE
             JURY'S VERDICT.

             V. THE SENTENCE IMPOSED WAS MANIFESTLY
             EXCESSIVE.

             [Id. (slip op. at 3).]

     Six years after affirming defendant's conviction and sentence on direct

appeal, we affirmed the denial of his first PCR petition, rejecting these

arguments:

             POINT ONE

             TRIAL COUNSEL WAS INEFFECTIVE IN FAILING
             TO REQUEST A WADE HEARING TO
             CHALLENGE THE ADMISSIBILITY OF A SHOW–
             UP IDENTIFICATION.

             POINT TWO

             DEFENSE COUNSEL WAS INEFFECTIVE IN
             FAILING TO MOVE FOR A MISTRIAL AFTER ONE
             OF THE STATE'S WITNESSES CONNECTED
             DEFENDANT TO OTHER BAD ACTS.

             POINT THREE

             IN THE ALTERNATIVE, DEFENDANT WAS
             ENTITLED TO AN EVIDENTIARY HEARING ON
             HIS CLAIMS.

             [State v. Luibil, No. A-1257-09 (App. Div. Jan. 10,
             2012) (slip op. at 3), certif. denied, 212 N.J. 105
             (2012).]


                                                                     A-0156-16T3
                                      4
      Defendant has since filed this, his second PCR petition, which the trial

court denied in a September 2, 2016 written opinion. Defendant raises the

following points for our consideration.

            POINT I

            DEFENDANT’S CONVICTION SHOULD BE
            VACATED AS DEFENDANT WAS DEPRIVED OF
            HIS RIGHT TO EFFECTIVE ASSISTANCE OF
            COUNSEL DUE TO HIS TRIAL, APPELLATE, AND
            FIRST PCR COUNSELS’ FAILURE TO OBJECT TO
            THE INHERENTLY AND IMPERMISSIBLY
            SUGGESTIVE “COURTROOM SHOWUP” THAT
            LED TO THE STATE’S SOLE EYEWITNESS
            IDENTIFYING DEFENDANT; A PRESUMPTION
            OF INEFFECTIVENESS EXISTS UNDER CRONIC
            AND FRITZ; ALTERNATIVELY, COUNSELS’
            PERFORMANCES WERE DEFICIENT AND THESE
            DEFICIENT PERFORMANCES MATERIALLY
            AFFECTED      THE      OUTCOME        OF  THE
            PROCEEDINGS;       THIS   PROCEDURE      ALSO
            CONSTITUTES A “STRUCTURAL ERROR”
            MANDATING REVERSAL; U.S. CONST. AMEND.
            VI; N.J. CONST. (1947) ART. 1, PAR. 10.

            POINT II

            THE CONVICTIONS SHOULD BE VACATED AS
            TRIAL COUNSEL WAS INEFFECTIVE IN HER
            CROSS-EXAMINATION OF THE WITNESS
            SCHOLTZ; PCR I COUNSEL WAS INEFFECTIVE
            IN   FAILING     TO   RAISE     THIS     ISSUE;
            DEFENDANT’S DUE PROCESS RIGHT TO A FAIR
            TRIAL WAS VIOLATED; U.S. CONST. AMENDS.
            VI AND XIV; N.J. CONST. (1947) ART. 1, PAR. 10.


                                                                      A-0156-16T3
                                          5
           POINT III

           THE CONVICTION SHOULD BE VACATED AS
           TRIAL COUNSEL WAS INEFFECTIVE BY
           FAILING TO INVESTIGATE AND INTERVIEW
           THE STATE’S SOLE IDENTIFYING WITNESS
           MATTHEW SCHOLTZ AND FAILING TO
           INVESTIGATE/INTERVIEW BRIAN BURNS AND
           IN FAILING TO CALL BURNS AS A DEFENSE
           WITNESS AS REQUESTED BY DEFENDANT;
           DEFENDANT’S DUE PROCESS RIGHT TO A FAIR
           TRIAL WAS VIOLATED; U.S. CONST. AMENDS.
           VI AND XIV; N.J. CONST. (1947) ART. 1, PAR. 10.

           POINT IV

           DEFENDANT’S CONVICTION SHOULD BE
           VACATED AS THE JURY INSTRUCTIONS AS TO
           IDENTIFICATION FAILED TO COMPLY WITH
           THE REQUIREMENTS OF STATE V. HENDERSON,
           208 N.J. 208 (2011) AND THE NEW MODEL JURY
           INSTRUCTIONS AS TO “IDENTIFICATION: IN-
           COURT IDENTIFICATION ONLY” IN VIOLATION
           OF DEFENDANT’S DUE PROCESS RIGHT TO A
           FAIR TRIAL (U.S. CONST. AMEND. XIV).

           POINT V

           THE COURT BELOW ERRED IN FINDING THAT
           DEFENDANT’S CLAIMS ARE BARRED UNDER R.
           3:22-5.

     We affirm, substantially for the reasons expressed by Judge Sohail

Mohammed in his comprehensive written opinion. Defendant's arguments are




                                                                 A-0156-16T3
                                   6
without sufficient merit to warrant further discussion in a written opinion. R.

2:11-3(e)(2).

      Affirmed.




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