On appeal from Superior Court of New Jersey, Law Division, Hudson County, I-98-05-0765.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2006
Before Judges Payne and Graves.
In June 2002, defendant Robert Farmer was convicted by a jury of third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5c(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; the disorderly persons' offense of resisting arrest, N.J.S.A. 2C:29-2a; second-degree eluding, N.J.S.A. 2C:29-2b; and second-degree possession of a weapon as a convicted felon, N.J.S.A. 2C:39-7b. He was sentenced to a nine-year prison term with four and one-half years of parole ineligibility for possession of a firearm as a convicted felon; to a consecutive term of nine years with four and one-half years of parole ineligibility for eluding; and to a concurrent six-month sentence for resisting arrest. The convictions for weapons possession and possession of a weapon for an unlawful purpose were merged at sentencing into the conviction for possession of a weapon as a convicted felon.
Defendant's convictions and sentence were affirmed by us in an unpublished opinion, State v. Farmer, No. A-1028-04T4 (App. Div. April 16, 2002), and certification was denied. State v. Farmer, 174 N.J. 190 (2002). Defendant then sought post-conviction relief (PCR), and his conviction for possession of a weapon for an unlawful purpose was vacated. However, his PCR petition was otherwise denied without a hearing. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I MR. FARMER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND PCR COUNSEL BECAUSE THEY FAILED TO RAISE THE ISSUE THAT THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR A MISTRIAL, AFTER THE STATE ELICITED TESTIMONY FROM DETECTIVE HENNE THAT IMPLIED MR. FARMER HAD A PRIOR CRIMINAL RECORD. (Not Raised at Direct Appeal or PCR)
POINT II THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY WITH A LIMITING INSTRUCTION CONCERNING THE TESTIMONY THAT MR. FARMER'S PHOTOGRAPH WAS OBTAINED FROM B.C.I. (Not Raised at Direct Appeal or PCR -- Partially Raised at Trial)
POINT III THE PCR COURT ERRED IN NOT ORDERING AN EVIDENTIARY HEARING ON MR. FARMER'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT THE SUPPRESSION HEARING.
POINT IV THE PCR COURT ERRED IN NOT REMANDING THE CASE FOR RESENTENCING AFTER THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE COUNT WAS REVERSED AND DISMISSED.
The record discloses that a confidential informant whose prior information had led to approximately fifteen arrests notified the police that an African-American male named "Yusef," wearing a tan goose-down jacket and a blue hat, was on the street at a particular location in Jersey City, carrying a gun. Following receipt of that information, Detective William Kallert and Officer Christopher Henne observed a person at the stated location, later identified as defendant, wearing a puffy three-quarter length tan jacket and hat similar to the ones that the informant had described and appearing to support an object under the jacket with his right hand. When the officers attempted to investigate, defendant fled and, upon reaching a building at 463 Ocean Avenue, subsequently determined to contain defendant's residence, defendant opened the door with his left hand, removed an object from under the jacket, and deposited it on the floor of the building's vestibule. Defendant was thereupon detained and when, upon further investigation, the object in the vestibule was found to be a sawed-off shotgun, defendant was placed under arrest. However, as he was being handcuffed, defendant slipped out of his jacket and escaped. Defendant was not immediately apprehended, but was spotted ...