STATE OF NEW JERSEY v. DARRELL MILTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4542-07T44542-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRELL MILTON,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 29, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-07-1182.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nidara Y. Rourk, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Darrell Milton appeals from a January 24, 2008 order that denied his first petition for post-conviction relief (PCR). We affirm.

I.

Following a trial by jury, defendant was convicted of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1), and distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7. After appropriate merger, defendant was sentenced on the N.J.S.A. 2C:35-7 charge to a five-year term of imprisonment, subject to a three-year period of parole ineligibility.

On direct appeal, we affirmed his conviction. State v. Milton, No. A-5521-02 (App. Div. March 14, 2005). We rejected defendant's claim that the jury charges were inadequate, and that the assistant prosecutor's summation, in which she allegedly vouched for the credibility of her witnesses, denied him a fair trial. In an earlier appeal, we rejected defendant's claim that a State's witness, Sergeant Sabo of the Jersey City police department, rendered an expert opinion and testified to the ultimate issue in dispute. State v. Milton, No. A-0739-02 (App. Div. February 6, 2003).

At the PCR hearing that is the subject of this appeal, defendant presented the following arguments: 1) his rights were violated when this court reinstated the guilty verdict and refused to allow him a new trial; 2) his former trial attorney provided ineffective assistance by withdrawing from his case without filing a 42 U.S.C. 1983 action on his behalf, and the PCR judge erred by denying his request for the appointment of counsel to file a damages action pursuant to 42 U.S.C. 1983 against the Jersey City police department and the Hudson County Prosecutor's Office; 3) the State's proofs were insufficient to establish his guilt beyond a reasonable doubt; 4) the trial prosecutor engaged in prosecutorial misconduct when she presented evidence from a co-defendant; 5) Jersey City police withheld exculpatory evidence in violation of his constitutional rights; and 7) the sentence imposed was excessive.

Without affording defendant an evidentiary hearing, Judge Kracov denied defendant's petition. The judge ruled that defendant's claims should be rejected because some had already been rejected by this court and could not be relitigated by defendant in a PCR petition, and the balance were either "without merit, . . . conclusory or incomprehensible."

In particular, Judge Kracov held that: defendant's claim of insufficient evidence had already been considered and rejected by the Appellate Division; because the State is permitted to rely on evidence from a co-defendant, such a practice is not an instance of prosecutorial misconduct; defendant had the opportunity to raise the claim of prosecutorial misconduct on direct appeal, but did not do so, and was therefore barred from relitigating such claim in the context of the PCR petition; and the Jersey City police department had no legal obligation "to seek out exculpatory information from eyewitnesses."

The judge also held that the claim of an excessive sentence was unsupported by facts or governing law; defendant's confinement by the Department of Corrections (DOC) beyond the maximum date is not a claim that is cognizable in a PCR petition; and defendant's former attorney, who withdrew from representing him on the indictment, had no obligation to file a 42 U.S.C. 1983 action on defendant's behalf. The judge concluded his findings by observing:

The bottom line in this case is that [defendant] had the case reviewed carefully by the Appellate Division three times. They found that he was convicted fairly . . . . He has had all the due process anyone could expect. He has made a PCR application with not the slightest merit and it is . . . denied in all respects.

On appeal, defendant raises the following claims:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS WERE VIOLATED.

A. Defendant's constitutional rights were violated since the prosecutor engaged in misconduct.

B. Defendant's constitutional rights were violated since the State withheld exculpatory evidence and defendant was incarcerated beyond his maximum date.

C. Defendant's constitutional rights were violated since his attorney had a conflict, withdrew from the case and never filed a federal lawsuit.

D. Defendant's constitutional rights were violated and defendant is entitled to the requested relief.

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED IN LIGHT OF CUMULATIVE ERRORS.

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

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

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

II.

Post-conviction relief is New Jersey's analog to

federal habeas corpus review. State v. Preciose, 129 N.J. 451, 459 (1992). A PCR petition is cognizable if based upon any of the following grounds: (a) a substantial denial of defendant's federal or state constitutional rights in the proceeding that led to his conviction; (b) the court imposing the judgment of conviction lacked jurisdiction; (c) the sentence imposed was unlawful; or (d) there exists any other common law or statutory ground "heretofore available as a basis for collateral attack." R. 3:22-2.

However, the PCR remedy has its limits. First, the petition must "set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought." R. 3:22-8. Any claims that are vague or conclusory may be dismissed. State v. Odom, 113 N.J. Super. 186, 192 (App. Div. 1971).

Second, a defendant may not raise a claim in a PCR petition that could have been addressed on direct appeal or in a prior proceeding unless (a) it "could not reasonably have been raised in any prior proceeding," (b) it would "result in a fundamental injustice" or, (c) or where "denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." R. 3:22-4. Third, claims that have already been expressly adjudicated on direct appeal may not be relitigated in a PCR petition. R. 3:22-5.

We turn first to defendant's claim that his rights were violated when this court reversed the order granting a new trial and reinstated the guilty verdict. Defendant appealed our decision to the Supreme Court, which denied his petition for certification. State v. Milton, 185 N.J. 267 (2005). This claim is therefore procedurally barred. R. 3:22-5. Defendant's claim that the State failed to prove his guilt beyond a reasonable doubt is likewise procedurally barred by Rule 3:22-5 because this claim was rejected on direct appeal.

Next, defendant asserts that the trial prosecutor committed misconduct when she "misled the jury into believing that the drugs seized from [the co-defendant] belonged to the defendant." This claim could have been raised on direct appeal, but was not, and is therefore barred by Rule 3:22-4.

As to defendant's claim in Point I(B) that "the police failed to collect exculpatory evidence," we agree with Judge Kracov that this claim could have been raised on direct appeal and is therefore procedurally barred by Rule 3:22-4. Moreover, although defendant relies upon Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to support his claim that the withholding of exculpatory evidence by the State requires a new trial, that case falls far short of supporting defendant's assertion that police have an affirmative obligation to search for exculpatory evidence that might benefit a defendant. His claim is therefore meritless.

In Point I(B), defendant also asserts that "he was illegally incarcerated beyond his maximum date." He has failed to provide any factual support for that contention; nor has he established that such claim is cognizable in a PCR petition, especially when he has failed to exhaust the available administrative remedies.

In Point I(C), defendant contends that his constitutional rights were violated when his former attorney withdrew due to a conflict of interest and never filed a federal lawsuit on his behalf seeking monetary damages. We agree with Judge Kracov that such claim is not cognizable in a PCR petition; it is a civil matter that lies outside the confines of the Rule that specifies the available grounds for relief in a PCR proceeding, namely Rule 3:22-2. This claim is meritless.

In Point II, defendant maintains that the order denying PCR must be reversed in light of cumulative errors made by the judge. Because there were no errors, and certainly not cumulative errors, we reject this claim.

In Points III and IV, defendant argues that the order denying post-conviction relief must be reversed because, contrary to Judge Kracov's conclusions, his claims are not procedurally barred. As we have already discussed, his claims are either procedurally barred or entirely lacking in merit. In light of that determination, the judge's refusal to grant defendant an evidentiary hearing, which defendant addresses in Point V, requires no discussion. See Preciose, supra, 129 N.J. at 462-63 (holding that no right to an evidentiary hearing exists unless defendant establishes a prima facie case).

Affirmed.

The appeal decided on February 6, 2003 was, in turn, preceded by yet another appeal, State v. Milton, No. A-1137-00 (App. Div. April 23, 2001), in which we reversed the trial court's order granting defendant's motion for a judgment of acquittal on the grounds of insufficient evidence. In so doing, we reinstated the guilty verdict and overturned the order granting a new trial. (slip op. at 8).

The judge observed that police "don't have to walk around the City of Jersey City crying out over a bullhorn whether anyone has exculpatory evidence involving Darrell Milton." He reasoned that although police have a duty to turn over exculpatory information that is in their possession, they have no duty to affirmatively seek out exculpatory evidence.

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A-4542-07T4

October 15, 2009