STATE OF NEW JERSEY v. JAMES D. BUNTING

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4169-07T44169-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES D. BUNTING,

Defendant-Appellant.

______________________________________________________________

 

Submitted May 19, 2009 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

01-12-2274.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Anderson D. Harkov, Designated

Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mary R. Juliano,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant James D. Bunting appeals from an order dated November 30, 2007, denying his petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of first-degree armed robbery, in violation of N.J.S.A. 2C:15-1; second-degree burglary, in violation of N.J.S.A. 2C:18-2; second-degree possession of a handgun for unlawful purposes, in violation of N.J.S.A. 2C:39-4(a); and second-degree possession of a handgun by a person previously convicted of a crime, in violation of N.J.S.A. 2C:39-7(b). After the trial court merged defendant's burglary and unlawful possession convictions into the first-degree robbery conviction, defendant was sentenced to a fifty-year extended prison term for armed robbery, subject to an eighty-five percent parole ineligibility term under the No Early Release Act, N.J.S.A. 2C:43-7.2. For possession of a handgun by a previously convicted person, defendant was sentenced to a concurrent ten-year term with five years of parole ineligibility.

On appeal, we affirmed defendant's convictions and his sentence in an unreported opinion. State v. Bunting, No. A-6501-03T4 (Dec. 6, 2005). We noted in our prior opinion that the State's eye-witness testimony was corroborated by scientific evidence.

Several persons saw defendant put a mask over his head, draw a silver pistol, and enter a house through an open screen door. Defendant stole cash, heroin, and a gold chain from the occupant. As defendant ran from the house, he dropped the mask, which was later found to contain defendant's DNA. One of the witnesses and the victim had seen defendant in the neighborhood and independently selected his photo from books of photographs. Two of the witnesses identified defendant at trial, although the victim changed his story before trial and declined to identify him.

[Id. at 2.]

In August 2006, defendant filed a pro se PCR petition, which was amended by PCR counsel. Following oral argument, Judge DeStefano, who also presided over defendant's jury trial, set forth his reasons for denying defendant's petition in a letter decision dated November 30, 2007.

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

POINT ONE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATIONS TO INVESTIGATE DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

THE COURT BELOW ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW TRIAL BECAUSE THE FAILURE OF TRIAL COUNSEL TO INTERVIEW THREE CRITICAL WITNESSES, WHO WOULD HAVE CORROBORATED THE VICTIM'S RECANTATION, DEPRIVED DEFENDANT OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT THREE

THE COURT BELOW ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW TRIAL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO CHALLENGE THE DNA EVIDENCE BY RETAINING HIS OWN EXPERT TO TESTIFY ABOUT THE SIGNIFICANCE OF THE FINDINGS AND/OR MOVING TO HAVE THE SECOND INDIVIDUAL'S DNA COMPARED TO THE VICTIM.

POINT FOUR

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW TRIAL AS A RESULT OF THE TRIAL COURT MISHANDLING DEFENDANT'S ABSENCE FROM THE THIRD DAY OF TRIAL; ESPECIALLY IN LIGHT OF TRIAL COUNSEL'S INEXPLICABLE STRATEGY TO REPEATEDLY HIGHLIGHT HIS CLIENT'S CRIMINAL RECORD BEFORE THE JURY.

 
We reject defendant's claim that his trial counsel was ineffective and that the court erred by continuing his trial in his absence substantially for the reasons set forth in Judge DeStefano's comprehensive written decision on November 30, 2007. In addition, we are satisfied that defendant's new argument regarding the alleged ineffectiveness of PCR counsel is clearly without merit. R. 2:11-3(e)(2). The record confirms that PCR counsel's representation of defendant fully conformed with the requirements of State v. Rue, 175 N.J. 1, 13-19 (2002) and State v. Webster, 187 N.J. 254, 257-58 (2006).

Affirmed.

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A-4169-07T4

June 9, 2009