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State v. Moore

Decided: April 14, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CLARENCE MOORE, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Atlantic County.

Before Judges J.h. Coleman, Muir, Jr., and Levy.

Muir

The opinion of the court was delivered by MUIR, JR., J.A.D.

Defendant appeals the denial of his post-conviction relief petition. We affirm.

The post-conviction relief petition came a little over two years after this court affirmed defendant's convictions on three counts of aggravated sexual assault, two counts of robbery, and one count of burglary but directed non-merger of the sexual assault convictions.

The appeal rejected contentions that certain prosecutorial comments required reversal; that the trial court erred in ruling defendant's prior convictions, one of which was carnal abuse, were admissible to attack defendant's credibility; that the trial court erred in denying acquittal, judgment notwithstanding the verdict, and new trial motions; that the trial court erred in admitting the victim's in-court identification of defendant on grounds the State

failed to comply with the dictates of State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), and the photographic arrays were unduly suggestive; that the sentence was excessive; and that the trial court erred in denying a change of venue or the empaneling of a foreign jury.

On September 4, 1991, after granting defendant permission to file an overlength brief, the Supreme Court denied defendant's petition for certification. Thereafter, the Court denied a motion for reconsideration. The same public defender who represented defendant on the applications to the Supreme Court has represented him on the trial and appellate phases of the post-conviction relief petition.

Defendant on this appeal contends:

POINT I

THE NEW JERSEY COURT RULES DO NOT PRECLUDE DEFENDANT CLARENCE MOORE FROM POST-CONVICTION RELIEF IN THE MATTER AT BAR.

A. Since The Issues Raised In The Petition For Post-Conviction Relief Were Not Previously Adjudicated And Those Constitutional Issues Are Of Substantial Import, R. 3:22-5 Does Not Bar Relief.

B. Since The Issues Contained In The Petition For Post-Conviction Relief Could Not Have Been Raised On Direct Appeal, R. 3:22-4 Does Not Preclude Relief.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL BY COUNSEL'S FAILURE TO ALLEGE AS ERROR MANY INSTANCES OF PROSECUTORIAL MISCONDUCT.

A. The Prosecutor Improperly Referred To Matters Outside The Evidence And He Virtually Testified Regarding His Personal Opinion As To The Veracity Of Testimony And The Guilt Of Defendant.

B. The Prosecutor Misstated The Law And Diluted The Burden Of Proof When He Told The Jury That Guilt Beyond A Reasonable Doubt Meant ...


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