STATE OF NEW JERSEY v. ANTWAN HARVEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4484-03T44484-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTWAN HARVEY,

Defendant-Appellant.

______________________________

 

Submitted November 15, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-08-1020.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent

(Steven J. Kaflowitz, Assistant

Prosecutor, of counsel, on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief (PCR). We affirm substantially for the reasons set forth by Judge Malone in an oral opinion placed on the record on February 27, 2004.

On this appeal defendant raises the following issues:

POINT I: THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED UNDER RULE 3:22-5 BECAUSE THE DEFENDANT ESTABLISHED CERTAIN CRITERIA WHICH ALLOWED FOR A RELAXATION OF THIS RULE.

POINT II: THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE PRE-TRIAL INVESTIGATION, FAILED TO CALL CHARACTER WITNESSES ON BEHALF OF DEFENDANT AND FAILED TO MOVE FOR A NEW TRIAL PURSUANT TO RULE 2:10-1.

POINT III: THE TRIAL COURT'S FAILURE TO GIVE PROPER JURY INSTRUCTIONS WITH RESPECT TO THE THEORY OF ACCOMPLICE LIABILITY DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, PAR. 1.

POINT IV: THE COMMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT THEREBY DENYING THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 9 AND 10).

POINT V: THE TRIAL JUDGE'S IMPOSITION OF A TERM OF IMPRISONMENT GREATER THAN THE PRESUMPTIVE TERMS CONSTITUTED A VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW AND ALSO CONSTITUTED AN ABUSE OF DISCRETION.

POINT VI: NOTWITHSTANDING THE MERITS OF DEFENDANT'S ARGUMENTS, THE PETITION FOR POST CONVICTION RELIEF SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

Having reviewed the record, we conclude that the contentions set forth in Points I through IV and Point VI are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We will not address the sentencing issue argued in Point V because it was not presented to Judge Malone. We add the following comments.

With the exception of Point V, defendant has raised the same issues that he raised on direct appeal, and which we rejected in affirming his conviction and his sentence. We find no merit in his claim of ineffective assistance of counsel in allegedly failing to present certain witnesses, since defendant presented no legally competent evidence concerning the proposed testimony of those witnesses. He did not present a prima facie case that his counsel was ineffective so as to entitle him to an evidentiary hearing on his claim. State v. Preciose, 129 N.J. 451, 463-64 (1992); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

Affirmed.

 

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A-4484-03T4

November 23, 2005