STATE OF NEW JERSEY v. LESLIE JOSEPH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0132-04T40132-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LESLIE JOSEPH,

Defendant-Appellant.

___________________________

 

Submitted September 27, 2006 - Decided November 15, 2006

Before Judges Stern and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, 95-04-0540-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Sharon A. Quinn, Designated

Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi,

Assistant Prosecutor, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Leslie Joseph was convicted of armed robbery, N.J.S.A. 2C:15-1 (count one), possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count two), and possession of a knife under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d (count three). The trial judge denied the State's application for an extended term and imposed a twenty-year sentence with ten years parole ineligibility on count one. The judge merged count two into count one and imposed a consecutive eighteen-month term on count three. The sentence was to run consecutive to a sentence defendant was serving in New York.

In an unpublished per curiam opinion on October 30, 1998, we affirmed the conviction and sentence on count one, merged count three into count one and remanded the matter for a new judgment of conviction, which was entered on December 2, 1998. The Supreme Court denied defendant's petition for certification on February 3, 1999. State v. Joseph, 158 N.J. 70 (1999). Defendant filed a pro se petition for post-conviction relief (PCR), and subsequently designated counsel submitted a brief in support of the petition. In a letter opinion filed April 17, 2003, Judge John E. Conte denied PCR and filed an order on May 5, 2003. This appeal followed.

Defendant's designated counsel submits the following arguments for our consideration:

POINT I - THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.

POINT II - THE INTRODUCTION INTO EVIDENCE OF AN IMPERMISSIBLY SUGGESTIVE PHOTOGRAPHIC LINEUP CONSTITUTED A DENIAL OF DUE PROCESS AND DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL.

POINT III - A JUROR'S STATEMENTS AND DECLARATIONS ABOUT HER OWN VICTIMIZATION HOPELESSLY PREJUDICED THE JURORS AND RESULTED IN A TAINTED VERDICT AND DENIED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT IV - THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL BECAUSE OF THE INAPPROPRIATE, MALICIOUS AND MISLEADING ASSERTIONS MADE BY THE PROSECUTOR DURING HER SUMMATION.

POINT V - THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.

POINT VI - THE COURT SHOULD HAVE GRANTED THE DEFENDANT POST-CONVICTION RELIEF FOR THE DENIAL OF GAP TIME CREDITS.

In addition defendant filed a pro se supplemental brief in which he makes the following legal arguments:

POINT I - PROSECUTORIAL MISCONDUCT BY THE STATE ALLOWING THE PERJURED TESTIMONY OF JEROME JOHNSON TO GO UNCORRECTED, THUS VIOLATING DEFENDANT'S 6TH AND 14TH AMENDMENT RIGHTS UNDER THE CONSTITUTION.

POINT II - INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO CHALLENGE JEROME JOHNSON FALSE TESTIMONY AT TRIAL.

POINT III - PROSECUTORIAL MISCONDUCT BY THE STATE TELLING THE JURY DURING OPENING AND CLOSING STATEMENTS THAT WHITE CAR WAS SEEN LEAVING THE CRIME SCENE, WITHOUT ANY WITNESSES TESTIFY TO THE SAME.

POINT IV - INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO OBJECT TO THE PROSECUTOR'S UNFACTUAL STATEMENTS DURING OPENING AND CLOSING ARGUMENTS.

POINT V - DEFENDANT'S 4TH AND 14TH AMENDMENT RIGHTS WERE VIOLATED BECAUSE THE COMPLAINT WAS NOT TAKEN UNDER OATH BEFORE A NEUTRAL AND DETACHED JUDICIAL OFFICER. DEFENDANT ALSO CHALLENGES THE UNCONSTITUTIONALITY OF AMENDED R. 3:2-1(a).

After careful consideration of the record and the arguments made on appeal, we affirm substantially for the reasons set forth by Judge Conte in his comprehensive written opinion of April 17, 2003. The remaining arguments set forth by defendant or on his behalf are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-0132-04T4

November 15, 2006