STATE OF NEW JERSEY v. JOHN L. WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4900-04T54900-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN L. WILLIAMS,

Defendant-Appellant.

________________________________

 

Submitted February 16, 2006 - Decided March 7, 2006

Before Judges Parker and King.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. 592-03-93.

John L. Williams, appellant pro se.

Zulima V. Farber, Attorney General of New

Jersey, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This is an appeal from denial of defendant's second petition for post-conviction relief under R. 3:22. We find no merit to the appeal and affirm for the reasons assigned by Judge Schultz in his three-page letter opinion of May 9, 2005. R. 2:11-3(e)(2).

This case had had an extensive procedural journey which we recite for purposes of completeness of the record. On March 25, 1993 a Hudson County grand jury filed Indictment No. 0592-03-93 charging defendant with conspiracy to distribute a controlled dangerous substance (cocaine), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) (count one); employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-6 (count two); possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (count three); possession of a controlled dangerous substance (cocaine) in a lesser quantity than a half ounce with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count four); possession of a controlled dangerous substance (cocaine) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (count five); distribution of a controlled dangerous substance (cocaine) in a lesser quantity than a half ounce, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 35-5b(3) (count six); distribution of a controlled dangerous substance (cocaine) within 1000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (count seven); and burglary of a motor vehicle, N.J.S.A. 2C:18-2 (count nine). Co-defendant Donna Pagan was charged in count eight with possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1).

Defendant was tried before Judge O'Halloran and a jury between May 31 and June 5, 1995. At the close of testimony, defendant moved for judgments of acquittal on all charges. The judge denied the motion. On June 5, 1995 the jury acquitted defendant on all charges except the third-degree unlawful possession of cocaine (count three).

On August 3, 1995 at the time of sentencing, defendant renewed his motion for a judgment of acquittal and sought a new trial. Both motions were denied. Judge O'Halloran sentenced defendant to a five-year term of imprisonment with a two-year period of parole ineligibility. The judge also imposed a $1,000 Drug Enforcement Demand Reduction penalty, a $50 laboratory fee, and a $50 Violent Crimes Compensation Board penalty. The judge suspended defendant's driver's license for one year. The judge also granted defendant a 585-day credit for time spent in custody, pursuant to R. 3:21-8.

Defendant appealed. In an unpublished per curiam opinion, State v. John Williams, Docket No. A-1323-95, (App. Div. December 31, 1996), we affirmed defendant's convictions. On April 24, 1997 the Supreme Court denied defendant's petition for certification. State v. Williams, 149 N.J. 142 (1997).

Defendant filed a pro se petition for a writ of habeas corpus with the United States District Court for the District of New Jersey. By opinion and order filed on July 20, 1999 Judge Walls dismissed defendant's petition.

Defendant then filed a pro se petition for post-conviction relief pursuant to R. 3:22-2. The Office of the Public Defender then filed an amended verified petition on defendant's behalf. On December 4, 2000, Judge DeBello signed an order denying post-conviction relief. In an unpublished per curiam opinion, State v. John Williams, Docket No. A-2899-00, (App. Div. February 20, 2002), we affirmed the denial of post-conviction relief. On May 22, 2002 the State Supreme Court denied defendant's petition for certification, State v. Williams, 172 N.J. 359 (2002).

Defendant again filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C.A. 2254, with the United States District Court for the District of New Jersey. By opinion and order filed on June 20, 2003 Judge Hochberg dismissed defendant's petition on jurisdictional grounds. Defendant filed a pro se appeal with the United States Court of Appeals for the Third Circuit. By September 5, 2003 order, Judge Hochberg determined that no certificate of appealability would issue. By a May 18, 2004 order, the Third Circuit denied defendant's request for a certificate of appealability. Defendant subsequently petitioned the United States Supreme Court for a writ of certiorari. On November 18, 2004 the United States Supreme Court denied this petition. Williams v. Harvey, 543 U.S. 981, 125 S. Ct. 483, 160 L. Ed. 2d 360 (2004).

On January 25, 2005 defendant filed a motion for the entry of a judgment of acquittal on this third-degree drug possession conviction. On March 16, 2005 Judge Schultz conducted a hearing with defendant present to determine the nature of his complaint. Defendant orally argued his contentions to the judge. Although brought in the form of a motion for a judgment of acquittal, Judge Schultz treated the application as a second post-conviction relief petition and asked that defendant file the necessary papers. After defendant filed his petition with supporting brief, on May 9, 2005 Judge Schultz denied defendant's application as time-barred since defendant had failed to prove excusable neglect or raise any meritorious claim. On May 19, 2005 defendant filed this appeal from Judge Schultz's denial.

In his appellate brief, defendant argues these points:

POINT ONE

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART I. PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED, WHEN THERE WAS A FUNDAMENTAL INJUSTICE HERE R. 3:22-4(b)(c), TO DENY HIS APPLICATION FOR POST CONVICTION RELIEF, WHEN THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY ON THE LAW OF ACCOMPLICE LIABILITY THEORY (Not Raised Below)

POINT TWO

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I. PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED, WHEN THE DISMISSAL OF A BURGLARY CHARGE (REGARDING A VAN WHERE APPARENTLY DRUGS WERE STASHED BY A UNINDICTED COCONSPIRATOR WHO EXERCISED DOMINION AND CONTROL OVER STATE'S S-6 CDS SEIZED BY THE POLICE OFFICERS SHOULD HAVE BEEN MADE KNOWN TO THE JURY, WHEN DEFENDANT WAS FOUND NOT GUILTY OF BEING PART OF THE CONSPIRACY AND EMPLOYING A JUVENILE IN A DRUG SCHEME, THAT HE HAD NO KNOWLEDGE OF, WHEN THEE WAS, NO EVIDENCE SHOWING THAT DEFENDANT HAD ACTUALLY DONE ANYTHING TO PROMOTE OR FACILITATE THAT POSSESSION IN THE INTENT WHICH IS THE CRIME'S BASIC ELEMENT, AND AT LEAST INDIRECTLY PARTICIPATED IN THE COMMISSION OF THE CRIMINAL ACT (Not Raised Below)

POINT THREE

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED, WHEN DEFENDANT WAS ENTITLED TO HAVE ASSIGNED COUNSEL REVIEW HIS SECOND POST-CONVICTION PETITION AND MAKE ARGUMENTS IN SUPPORT OF IT (Not Raised Below)

In his reply brief, defendant argues:

POINT ONE

APPELLATE COUNSEL(S) WARRANTS THE RELIEF BEING SOUGHT HAS TRENCH [SIC] ON APPELLANT'S SIXTH AMENDMENT GUARANTEE, INCORPORATED IN THE STATE CONSTITUTION, OF TRIAL BY JURY WERE VIOLATED, BECAUSE THE TRIAL COURT DID NOT GIVE CLEAR UNDERSTANDABLE JURY INSTRUCTIONS REGARDING ACCOMPLICE LIABILITY THEORY

As noted, we find this appeal bereft of merit, not warranting further discussion in a written opinion. R. 2:11-3(e)(2); see also R. 3:22-4 (procedural bar), R. 3:22-5 (prior adjudication), and R. 3:22-12(a) (time-bar). We affirm for the reasons presented in Judge Schultz's able written opinion.

 
Affirmed.

(continued)

(continued)

7

A-4900-04T5

March 7, 2006