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State v. Brown

July 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL BROWN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-04-0345.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2007

Before Judges Coburn and R. B. Coleman.

Defendant Michael Brown appeals from a November 15, 2005 order denying his petition for post conviction relief (PCR). We affirm.

Defendant was charged under Passaic County Indictment No. 98-04-0345 with the following crimes: second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third degree terroristic threats, N.J.S.A. 2C:12-3(a) or N.J.S.A. 2C:12-3(b) (count two); first degree attempted murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count three); second degree burglary, N.J.S.A. 2C:18-2 (count four); third degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth degree contempt of court or knowingly violating a restraining order, N.J.S.A. 2C:29-9(b) (count six). On motion by the State, the court severed count six on January 27, 1999. Following trial in January and February 1999, the jury found defendant guilty on all counts presented, save count one, as to which it found defendant not guilty of aggravated assault, but guilty of the lesser-included offense of simple assault.

After weighing the aggravating factors against the nonexistent mitigating factors, the court imposed an aggregate sentence of thirty-five years in prison with a twenty-eight year period of parole ineligibility. More particularly, the court imposed a one-hundred eighty day jail sentence on count one; a concurrent five year term, with two and one half years of parole ineligibility, on count two; a consecutive ten years with eighty-five percent parole disqualifier on count four; and a consecutive twenty years with eighty-five percent parole disqualifier on count three. The judge merged the possession of weapon for an unlawful purpose into the burglary and/or attempted murder counts. At a subsequent hearing, the trial judge restructured the order of the sentence so that the longest terms would be served first.

Defendant appealed from his judgment of conviction and, in an unpublished opinion issued on January 26, 2001, another panel of this court affirmed. The Supreme Court denied defendant's petition for certification on April 3, 2001. State v. Brown, 168 N.J. 290 (2001). On February 28, 2003, defendant filed a pro se petition for PCR, supplemented by submissions of counsel and a certification in support of the petition in April 2004. On February 9, 2005, the PCR judge entertained oral argument on the issues raised on behalf of defendant and rejected them as procedurally barred or lacking substantive merit. The judge reserved on the challenge of the sentence, pending the resolution of the appeal in State v. Natale, 184 N.J. 458 (2005). By order dated November 15, 2005, the court denied relief on the reserved issue.

Defendant now raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUESTS FOR ANOTHER ATTORNEY AS WELL AS IN DENYING TRIAL COUNSEL'S REQUEST TO BE RELIEVED AS DEFENDANT'S ATTORNEY AND TO HAVE ANOTHER TRIAL COUNSEL ASSIGNED TO REPRESENT HIM.

POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO INVESTIGATE HIS CASE AND ADEQUATELY PREPARE A DEFENSE; BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

POINT III: DEFENDANT'S SENTENCE, WHICH EXCEEDED THE PRESUMPTIVE STATUTORY TERMS AND WAS BASED ON THE COURT'S FINDINGS OF AGGRAVATING FACTORS OTHER THAN A PRIOR CONVICTION, VIOLATED THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

Because the facts are sufficiently recounted in the appellate decision affirming defendant's judgment of conviction and because the resolution of the issues raised do not depend upon an analysis of the facts, we need not repeat them here.

Prior to the start of trial, defendant informed the judge that he wished to obtain different counsel because his family was in the process of obtaining private counsel. However, when questioned, defendant could not produce any information regarding ...


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