STATE OF NEW JERSEY v. TIMOTHY STURDIVANT

(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NOT FOR PUBLICATION WITHOUT THE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-5118-06T45118-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY STURDIVANT,

Defendant-Appellant.

________________________________

 

Submitted February 24, 2009 - Decided

Before Judges Winkelstein, Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

98-06-0686.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jane M. Personette, Designated

Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Keith E. Hoffman,

Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Timothy Sturdivant appeals from the denial of his post-conviction relief (PCR) petition. We affirm.

In December 2000, a jury found defendant guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree armed robbery, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:2-6; second-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) and N.J.S.A. 2C:2-6; fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:2-6; and second-degree possession of a firearm by a person who had been previously convicted of a felony, N.J.S.A. 2C:39-7 and N.J.S.A. 2C:2-6.

After granting the State's motion to impose an extended term, the court merged the appropriate convictions and sentenced defendant to an aggregate term of thirty years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed defendant's conviction on direct appeal, but remanded for the trial court to recalculate the NERA parole ineligibility period. State v. Sturdivant, No. A-4876-00, (App. Div. March 21, 2003) (slip op. at 16). The Supreme Court denied defendant's petition for certification. State v. Sturdivant, 177 N.J. 496 (2003).

On February 27, 2006, the trial court entered an order assigning counsel to represent defendant in connection with the PCR petition under review here. In his trial court brief, PCR counsel argued that defendant received ineffective assistance of both trial and appellate counsel. As to trial counsel, defendant claims that his attorney: (1) failed to properly challenge videotape and photo array evidence used by the State to identify him as the person committing the robberies; (2) inappropriately and inadequately questioned State witnesses; and (3) failed to move to strike testimony about other robberies in the area. As to appellate counsel, defendant claims that he was ineffective in failing to raise these and other appealable issues.

The PCR petition was heard by Judge Clark on April 11, 2007. After considering the arguments of counsel, Judge Clark denied the petition, memorializing her ruling in an order dated April 24, 2007.

Defendant now appeals, raising the following arguments.

POINT I

THE COURT BELOW ERRED IN FAILING TO ORDER AN EVIDENTIARY HEARING AS DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

a. The PCR court erred in denying relief based upon Defendant's claim that trial counsel was ineffective for failing to conduct a reasonable pretrial investigation into and test of the evidence seized and in failing to file a motion to suppress the photo array.

b. Defense Counsel rendered ineffective assistance through an inappropriate line of questioning of police witnesses, thus prejudicing Defendant.

c. Defense counsel rendered ineffective assistance by engaging in an inappropriate line of questioning of the alleged victim, thus prejudicing Defendant.

d. Defense counsel was ineffective for failing to move to strike unsolicited police testimony regarding Defendant being investigated for unrelated robberies in the local area.

POINT II

THE COURT BELOW ERRED IN FAILING TO CONDUCT A PLENARY PRE-TRIAL HEARING ON THE ISSUE OF THE INDENTIFICATION OF THE DEFENDANT.

POINT III

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO ADEQUATELY EXAMINE AND RAISE THE PERTINENT LEGAL AND FACTUAL ISSUES ON DIRECT APPEAL.

POINT IV

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT V

FOR ALL OF THE REASONS AND ARGUMENTS ASSERTED IN POINTS I THROUGH IV, THE COURT BELOW ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING TO ADDRESS DEFENDANT'S VARIOUS ASSERTED GROUNDS FOR RELIEF, MOST PARTICULARLY HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

Instead of reciting at length the underlying facts of this case, we incorporate by reference the facts described in our opinion affirming defendant's conviction. Sturdivant, supra, slip op. at 2-5. Defendant's arguments in this appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As noted by Judge Clark, most of defendant's arguments are procedurally barred by R. 3:22-5 because they were raised in and decided by defendant's direct appeal. We affirm substantially for the reasons expressed by Judge Clark in her oral opinion delivered from the bench on April 11, 2007.

 
Affirmed.

(continued)

(continued)

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A-5118-06T4

June 15, 2009