STATE OF NEW JERSEY v. ARNOLD LANKFORD

 

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6628-03T46638-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARNOLD LANKFORD,

Defendant-Appellant.

___________________________________

 

Submitted March 21, 2006 - Decided April 4, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94-12-1424.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of felony murder, in violation of N.J.S.A. 2C:11-3a(3); and robbery, in violation of N.J.S.A. 2C:15-1a(1). The trial court sentenced defendant to a forty-year term of imprisonment, with thirty years of parole ineligibility, for murder, and merged the robbery conviction into the murder conviction.

On appeal, we affirmed defendant's conviction and sentence in an unpublished opinion. State v. Lankford, No. A-1479-98T4 (App. Div. Mar. 3, 2000). The Supreme Court denied defendant's petition for certification. 165 N.J. 134 (2000).

Defendant filed a petition for post-conviction relief that alleged ineffective assistance of trial counsel. The alleged ineffective assistance consisted of trial counsel failing to adequately investigate the case prior to trial, conducting cross-examination of a prosecution witness, Cynthia Gathers, that resulted in the introduction of other crimes evidence against defendant and failing to present expert testimony refuting the State's medical testimony. The trial court conducted an evidentiary hearing on the petition at which both trial counsel and defendant testified. Following the hearing, the trial court issued a written decision denying defendant's petition.

On appeal from the denial of his petition, defendant presents the following argument:

THE TRIAL COURT COMMITTED ERROR IN DENYING THE APPELLANT'S MOTION FOR POST CONVICTION RELIEF SINCE TRIAL COUNSEL WAS INEFFECTIVE BY OPENING THE DOOR TO ADMISSION OF OTHER CRIME EVIDENCE AGAINST THE APPELLANT AND NOT REQUESTING A LIMITING INSTRUCTION FROM THE COURT AFTER THE FACT.

We reject this argument and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Riva's comprehensive written opinion of June 9, 2004. Defendant's argument does not have sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2). We agree with Judge Riva that Gather's non-responsive answer to trial counsel's question that suggested defendant was high on drugs the night before the crime was fleeting and that trial counsel made a reasonable strategic decision not to highlight that comment by requesting a curative instruction. Moreover, in light of the overwhelming evidence of defendant's guilt, there is no basis for concluding that there is a reasonable probability Gather's comment or the lack of a curative instruction had an effect on the outcome of the trial.

 
Affirmed.

(continued)

(continued)

3

A-6628-03T4

April 4, 2006