STATE OF NEW JERSEY v. HUSSEIN DIGGS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0072-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUSSEIN DIGGS,

Defendant-Appellant.

_______________________________________________________________

October 24, 2011

Submitted October 12, 2011 - Decided

Before Judges Carchman and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-05-2570.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

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

A jury convicted defendant of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). After appropriate mergers, the trial court imposed an aggregate sentence of fifty years with eighty-five percent to be served without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction but remanded the case for resentencing. State v. Diggs, No. A-1255-99 (App. Div. May 8, 2001). On remand, the court sentenced defendant to an aggregate term of fifty years with twenty-five years of parole ineligibility under the NERA. Defendant did not file an appeal from that sentence.

Defendant filed a PCR petition and an amended petition. Following an evidentiary hearing conducted on April 2 and December 4, 2009, Judge Michael A. Petrolle denied the petition. On appeal, defendant raises the following issues:

POINT I

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT II

THE ADMISSION OF CERTAIN HEARSAY EVIDENCE WAS IMPROPER AND DEPRIVED PETITIONER OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

POINT III

THE COURT'S JURY INSTRUCTION ON IDENTIFICATION WAS INCOMPLETE AND INADEQUATE AND DEPRIVED PETITIONER OF A FAIR TRIAL.

POINT IV

THE SENTENCE IMPOSED UPON THE DEFENDANT FOLLOWING TRIAL AND PETITIONER'S REJECTION OF A PLEA OFFER, WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED.

After reviewing the record and the briefs in light of the applicable law, we conclude that none of these arguments has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.