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State v. Ellison

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARTHUR L. ELLISON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-04-0476.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 6, 2007

Before Judges C.S. Fisher and Messano.

Following a trial, defendant was convicted of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), armed robbery, N.J.S.A. 2C:15-1, and aggravated assault, N.J.S.A. 2C:12-1(b)(2). The trial judge granted the State's motion for an extended term, pursuant to 2C:43-7.1, and sentenced defendant to life imprisonment without the possibility of parole.

Defendant appealed, arguing, among other things, that: the trial judge erred in admitting DNA evidence; the procedures utilized by the police that resulted in out-of-court and in- court identifications of defendant were impermissibly suggestive; his Sixth Amendment right to confrontation was violated; and he was deprived of his federal and state constitutional rights to a jury determination of the facts upon which his sentence was based. We affirmed by way of an unpublished opinion filed on November 7, 2003. Docket No. A- 2822-01T4. The Supreme Court denied defendant's petition for certification. 178 N.J. 454 (2004).

Defendant filed a petition for post-conviction relief on August 18, 2004. After hearing argument from counsel, and defendant as well, the trial judge denied the petition. Defendant appealed the order of March 16, 2006 that denied his petition for post-conviction relief. In the brief submitted by defense counsel, the following arguments were presented for our review:

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

A. TRIAL COUNSEL FAILED TO ARGUE IN SUPPORT OF A PROPER JURY CHARGE.

B. TRIAL COUNSEL FAILED TO PRESS FOR VOICE IDENTIFICATION EVIDENCE.

C. TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE AND PREPARE THE CASE.

D. TRIAL COUNSEL FAILED TO COMMUNICATE WITH HIS CLIENT.

E. TRIAL COUNSEL FAILED TO FILE OR PURSUE CRUCIAL MOTIONS.

F. TRIAL COUNSEL'S CROSS EXAMINATION WAS SUBSTANDARD.

G. TRIAL COUNSEL'S STRATEGY WAS DEFICIENT AND CONSTITUTED THE INEFFECTIVE ASSISTANCE OF COUNSEL.

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

III. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO RECONSIDERATION OF THE MOTION FOR THE APPOINTMENT OF A DNA EXPERT.

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

V. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT'S SENTENCE IS ILLEGAL AND/OR EXCESSIVE.

VI. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE STATE FAILED TO DISCLOSE EXCULPATORY EVIDENCE.

VII. THE ORDER DENYING POST-CONVICTION RELIEF MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.

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

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

Defendant also submitted a pro se brief that raised the following issue for our consideration:

DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION, AND HIS RIGHT TO TRIAL BY JURY UNDER THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION TOGETHER WITH ARTICLE 1, PARAGRAPH 8, ARTICLE 1, PARAGRAPH 9, AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY STATE CONSTITUTION, BASED UPON FACTS NEVER SUBMITTED TO THE GRAND JURY AND RETURNED IN THE INDICTMENT, NOR FOUND BY THE JURY AT TRIAL AND PROVEN BEYOND A REASONABLE DOUBT.

We reject these arguments and affirm substantially for the reasons set forth by Judge Walter R. Barisonek in his thorough oral decision of March 13, 2006.

Affirmed.

20070618

© 1992-2007 VersusLaw Inc.



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