STATE OF NEW JERSEY v. JAMES ARMWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3012-08T43012-08T4

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

JAMES ARMWOOD,

Defendant-Appellant.

____________________________

 

Argued May 3, 2010 - Decided

Before Judges Rodr guez and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-02-00450-I.

James Pomaco argued the cause for appellant (Dell'Italia, Affinito & Santola, attorneys; John Dell'Italia, of counsel and on the brief).

Kenneth P. Ply, Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Mr. Ply, of counsel and on the brief).

PER CURIAM

Defendant James Armwood appeals from the order of January 26, 2009, denying his second petition for post-conviction relief. We affirm.

On March 23, 1989, defendant was convicted by a jury of murder, N.J.S.A. 2C:11-3(a); possession of a weapon with the purpose of using it unlawfully, N.J.S.A. 2C:39-4(a); and possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). He was sentenced to life imprisonment with thirty years of parole ineligibility. On direct appeal, we affirmed the conviction but reduced the sentence to the base term of thirty years. State v. Armwood, No. A-4814-88 (App. Div. May 3, 1990) (slip op. at 9). We also declined to address defendant's ineffective assistance of counsel claims, stating that these matters may be raised in a post-conviction relief application. Ibid.

Defendant thereafter filed a post-conviction relief petition, contending that defense counsel had been ineffective by failing to investigate the case, by inadequately preparing for trial, and by advising defendant not to testify. After conducting an evidentiary hearing, the trial court denied the petition, and we affirmed. State v. Armwood, No. A-2784-94 (App. Div. July 3, 1996).

On May 12, 2008, defendant filed a second petition for post-conviction relief pro se, although counsel thereafter represented him. In a twelve page written decision dated January 26, 2009, the trial court denied this second petition on the merits and on the procedural ground that the petition was untimely.

On appeal, defendant contends that his counsel was ineffective for failing to seek to suppress the photograph that the police obtained from defendant's friend and allegedly used in the photo array in which two witnesses identified defendant, and in his brief, defendant raises the following issues:

POINT ONE

THE TRIAL COURT ERRED IN FINDING NO EXCUSABLE NEGLECT ON THE PART OF DEFENDANT/APPELLANT

A. DEFENDANT/APPELLANT HAS SHOWN EXCUSABLE NEGLECT

B. THE INTERESTS OF JUSTICE DEMAND THAT DEFENDANT/APPELLANT'S SECOND PCR BE CONSIDERED ON THE MERITS

POINT TWO

THE LAW IS CLEAR THAT THE PCR JUDGE SHOULD NOT VIEW THE FACTS IN A VACUUM IN DECIDING WHETHER AN ISSUE WAS PREVIOUSLY RAISED OR ADJUDICATED

A. DEFENDANT HAD STANDING TO CHALLENGE THE UNLAWFUL SEIZURE OF THE PHOTOGRAPH

B. IF THE PHOTOGRAPH HAD BEEN EXCLUDED THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT

C. THERE WERE SEVERAL ISSUES LEFT OPINION [sic] BY THE APPELLATE DIVISION THAT WERE RESERVED FOR THE FIRST PCR

POINT THREE

DEFENDANT/APPELLANT HAS ASSERTED SUSTAINABLE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

A. TRIAL COUNSEL'S FAILURE [TO] CONDUCT ADEQUATE PRE-TRIAL INVESTIGATION SUPPORTS AN INEFFECTUAL ASSISTANCE OF COUNSEL CLAIM

B. PCR AND APPELLATE COUNSEL WERE INEFFECTIVE

POINT FOUR

DEFENDANT/APPELLANT SHOULD BE GIVEN AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

POINT FIVE

THE COURT SHOULD HAVE GRANTED DEFENDANT/APPELLANT'S MOTION TO APPOINT COUNSEL

After a careful review of the record and the arguments of counsel in light of the relevant law, we conclude that these issues are without sufficient merit to warrant disposition in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge St. John's written opinion.

Affirmed.

 

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A-3012-08T4

August 2, 2010