STATE OF NEW JERSEY v. SHAWN JOHNSON

NOT FOR PUBLICATION WITHOUT THE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.

SHAWN JOHNSON,

Defendant-Appellant.

_______________________________________________

May 28, 2015

Submitted May 19, 2015 Decided

Before Judges Fisher and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-04-1027.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In 2008, defendant was tried and convicted of first-degree attempted murder of one individual, first-degree murder of another, and additional weapons offenses, and sentenced by Judge Ira E. Kreizman to an aggregate sixty-year prison term. Defendant appealed, raising numerous issues regarding the jury instructions, certain evidence rulings and the sentence imposed. We rejected all these arguments and affirmed, State v. Johnson, No. A-1746-08 (App. Div. Jan. 13, 2011); the Supreme Court denied defendant's petition for certification, 207 N.J. 228 (2011).

On February 6, 2012, defendant filed a pro se post-conviction relief (PCR) petition, which was later supplemented by counsel not only with additional legal argument but also with an affidavit executed by Tyshan Smalls in 2008. After hearing the argument of counsel, the PCR petition was denied by Judge Richard W. English on December 5, 2013. Defendant appeals, arguing in a single point

THE RECANTATION OF TYSHAN SMALLS MANDATES THAT THIS MATTER BE REMANDED FOR AN EVIDENTIARY HEARING.

As the record reveals, the affidavit of Smalls submitted in support of the PCR petition represented one of multiple factual versions provided by Smalls, prompting the State to argue in response that this new affidavit "represent[s] yet another statement by Small[s] that was inconsistent with every other inconsistent statement Small[s] had given in this case."

After close examination of the record in light of the contentions posed in this appeal, including the considerable amount of evidence unrelated to the grounds upon which the PCR petition was based that supported defendant's conviction, we affirm substantially for the reasons set forth by Judge English in his thorough oral decision.

Affirmed.