STATE OF NEW JERSEY v. CLIFFORD HARRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0728-04T40728-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLIFFORD HARRIS,

Defendant-Appellant.

___________________________________

 

Submitted March 14, 2006 - Decided March 28, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-05-0548.

Yvonne Smith Segars, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Patricia L. Cronin, on the brief).

PER CURIAM

A jury found defendant guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1), (2); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b. The trial court sentenced defendant to a thirty-year term of imprisonment, with thirty years of parole ineligibility, for murder, and a concurrent four-year term for unlawful possession of a weapon. The trial court merged defendant's conviction for possession of a weapon for an unlawful purpose into his conviction for murder.

On appeal, we affirmed defendant's conviction in an unreported opinion. State v. Harris. No. A-2261-97T4 (Oct. 23, 2000). The Supreme Court denied defendant's petition for certification. 167 N.J. 629 (2001).

Defendant filed a petition for post-conviction relief in which he alleged that his trial counsel had been ineffective in various respects. The trial court conducted an evidentiary hearing on the petition in which defendant's trial counsel testified. On April 22, 2004, the trial court issued a lengthy oral opinion denying defendant's petition, which was memorialized by an order issued that same day.

On appeal, defendant presents the following arguments:

I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DEPRIVED HARRIS OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

II. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF PASSION/PROVOCATION (Not Raised Below).

We reject the arguments presented under Point I of defendant's brief substantially for the reasons set forth in Judge Moynihan's comprehensive oral opinion of April 22, 2004.

The argument presented under Point II of defendant's brief was not presented in defendant's petition for post-conviction relief. Thus, it is not properly before us. See

Nieder v. Royal Indem., Ins. Co., 62 N.J. 229, 234 (1973). Furthermore, this argument was advanced by defendant in his direct appeal, and we rejected the argument for the reasons set forth on pages 6 to 8 of our opinion. Therefore, defendant is barred from raising this argument again in the current appeal from the denial of his petition for post-conviction relief. R. 3:22-5. Defendant has not shown any basis for relaxation of this rule. State v. Castagna, 376 N.J. Super. 323, 355-58 (App. Div.), certif. denied, 185 N.J. 36 (2005), upon which defendant relies in support of this argument, simply applied well established law regarding the submission of lesser-included offenses to the jury to the particular facts of that case.

 
Affirmed.

(continued)

(continued)

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A-0728-04T4

March 28, 2006