STATE OF NEW JERSEY v. DARNELL R. HICKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL R. HICKS,

Defendant-Appellant.

__________________________

March 10, 2014

Submitted February 26, 2014 Decided

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-12-2621.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor,attorney forrespondent (Courtney M.Cittadini, SpecialDeputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Darnell Hicks appeals from the June 21, 2012 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of conspiracy to commit second-degree aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. The jury found defendant not guilty of first-degree murder, N.J.S.A. 2C:11-3a(1)-(2), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. On April 17, 2008, the trial judge sentenced defendant to a nine-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, for conspiracy to commit aggravated assault; a consecutive term of eighteen months for tampering with evidence; and a consecutive nine-year term, with five years of parole ineligibility for certain persons not to have weapons.

Defendant appealed his conviction and sentence. He argued, in part, that his convictions for conspiracy to commit aggravated assault and aggravated assault must be vacated because the jury's findings of guilt with respect to those charges were inconsistent with its finding of not guilty of the murder and possession of a weapon for an unlawful purpose charges. We affirmed, but remanded to correct a technical problem with the sentence. State v. Hicks, No. A-0097-08 (App. Div. Aug. 12, 2010). Quoting State v. Banko, 182 N.J. 44, 46 (2004), we concluded "there exists a sufficient evidential basis in the record to support [the guilty verdicts]." Id. at 19. Our Supreme Court denied certification. State v. Hicks, 205 N.J. 79 (2011).

Defendant filed a PCR petition, contending that trial counsel rendered ineffective assistance by failing to object to the jury verdict form, which led to the inconsistent verdict, and failing to request certain jail credits. In a June 21, 2012 oral opinion, Judge Kyran Connor found that defendant's inconsistent verdict contention was procedurally barred by Rule 3:22-5 because it was adjudicated on the merits on direct appeal. The judge also determined that because defendant was sentenced before State v. Hernandez, 208 N.J. 24 (2011), he was not entitled to the jail credits he requested.

On appeal, defendant raises the same arguments he raised before Judge Connor. We have considered these arguments in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Connor.