STATE OF NEW JERSEY v. TYREE PORTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2442-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYREE PORTER,

Defendant-Appellant.

________________________________________________________________

May 4, 2011

Submitted February 1, 2011 - Decided

Before Judges Espinosa and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 02-01-0291 and 02-01-0292.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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

Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b). The State's motion for an extended term was granted and defendant was sentenced as a persistent offender to an aggregate term of fifty years with the first twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed his convictions and sentence on appeal in an unpublished opinion, State v. Porter, No. A-4193-02 (App. Div. May 24, 2006). The relevant facts are set forth in that opinion and need not be repeated here.

The Supreme Court granted defendant's petition for certification and remanded for the limited purpose of resentencing. State v. Porter, 188 N.J. 487 (2006). Thereafter, defendant was resentenced on the robbery count twice, resulting in a term of twenty-five years and six months, with the first twenty years subject to NERA.

Defendant filed a PCR petition in July 2007, in which he claimed he was deprived the effective assistance of trial counsel and that the prosecutor had committed misconduct. His petition was denied and, in this appeal, defendant presents the following issues for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

A. TRIAL COUNSEL FAILED TO OBJECT MORE STRENUOUSLY TO THE PROSECUTOR'S INAPPROPRIATE COMMENT DURING SUMMATION

B. TRIAL COUNSEL FAILED TO INVESTIGATE POTENTIAL WITNESSES

C. COUNSEL WAS INEFFECTIVE DURING SENTENCING AND RESENTENCING

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE

POINT III

THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE SUMMATION, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS

POINT V

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5

POINT VI

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

After carefully reviewing the record and briefs, we are satisfied that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm, substantially for the reasons given by the PCR judge in his oral opinion.