STATE OF NEW JERSEY v. TIMMY SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3203-05T43203-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMMY SMITH,

Defendant-Appellant.

______________________________________________________

 

Submitted September 18, 2007 - Decided

Before Judges Coburn and Chambers

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Indictment No. 95-07- 0916.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (John J. Scaliti, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Timmy Smith, appeals from the October 17, 2005, order denying his petition for post-conviction relief. We affirm.

In 1997, a jury found defendant guilty of felony murder, N.J.S.A. 2C:11-3(a)(3); first degree robbery, N.J.S.A. 2C:15-1; second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree hindering apprehension, N.J.S.A. 2C:29-3(a) and N.J.S.A. 2C:29-3(b); and fourth degree attempt to unlawfully dispose of a weapon, N.J.S.A. 2C:39-9(d) and N.J.S.A. 2C:5-1, unlawful possession of a weapon, hindering apprehension and unlawful disposition of a weapon. On direct appeal, we ordered a merger of the second degree weapon offense, but otherwise affirmed. State v. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999). Thereafter, defendant filed a petition for post-conviction relief, from the denial of which this appeal ensued.

We incorporate by reference our description of the facts in our prior opinion, id. at 391-92, in which we concluded that there was "overwhelming evidence of defendant's guilt . . . ." Id. at 400. Among other things, defendant testified at trial that he participated in the robbery, but denied possession or use of the murder weapon, or knowledge that one of his co-defendants was going to bring a gun to the robbery. His denials were contradicted by his statements to the police and to his brother, and by testimony from one of his accomplices. Moreover, he admitted at trial that after the gun was drawn, supposedly by his accomplice, but before the shot was fired, he continued to strike the victim and demand money. Id. at 392.

On appeal defendant offers the following arguments for reversal of the order denying post-conviction relief:

POINT I

THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

(A) TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE THE CASE

(B) TRIAL COUNSEL FAILED TO HAVE JOHNNY THOMPSON PLACED ON THE STAND

(C) TRIAL COUNSEL WAS INEFFECTIVE DURING JURY SELECTION

(D) TRIAL COUNSEL'S STRATEGY WAS DEFICIENT AND CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL

POINT III

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

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE ASSISTANT PROSECUTOR ENGAGED IN MISCONDUCT WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL

POINT V

THE COURT'S DENIAL OF DEFENDANT'S POST-CONVICTION RELIEF APPLICATION MUST BE REVERSED AS THE COURT FAILED TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSION OF LAW AS REQUIRED BY R. 3:22-11 [Not Raised Below]

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

POINT VII

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT SHOULD HAVE RECUSED ITSELF SUA SPONTE [Not Presented Below]

POINT VIII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4

POINT IX

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE LOWER COURT ABUSED ITS DISCRETION IN FAILING TO GRANT AN ADJOURNMENT TO ALLOW FURTHER INVESTIGATION

POINT X

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

After carefully considering the records and brief, we are satisfied that all of defendant's arguments are without sufficient merit to warrant consideration in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Venezia in his oral opinion of October 17, 2005. We add the following brief comments.

Defendant was not entitled to an evidentiary hearing because he completely failed to present evidence that his attorneys were ineffective. State v. Preciose, 129 N.J. 451, 461-464 (1992). Furthermore, a defendant must present evidence that a different result would have occurred if his attorneys had done what he claims they should have done. State v. Fritz, 105 N.J. 42, 60-61 (1987). Even if we accepted that the things of which defendant complains were deficiencies, which we do not, given the utterly overwhelming evidence of guilt, a different result is frankly inconceivable.

Affirmed.

 

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A-3203-05T4

September 27, 2007