STATE OF NEW JERSEY VS. LOUIS LUIBIL (03-04-0383, PASSAIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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
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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
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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).]
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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.
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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
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without sufficient merit to warrant further discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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