September 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY HEUSTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-12-1436.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Fuentes and Grall.
Tried to a jury, defendant Jeffrey Heuston was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4d. The trial court sentenced defendant to an eighteen-year term of incarceration, eighty-five percent to be served without possibility of parole, for robbery, N.J.S.A. 2C:43-7.2a, d(9), and to a concurrent term of five years, two and one-half years to be served without possibility of parole, for possession of a weapon with an unlawful purpose, N.J.S.A. 2C:43-6c.
On direct appeal we affirmed defendant's conviction and sentence in an unreported opinion, State v. Heuston, No. A-2292- 02 (App. Div. Nov. 18, 2003). The Supreme Court denied defendant's petition for certification, 179 N.J. 311 (2004).
Defendant filed a timely petition for post-conviction relief in which he alleged ineffective assistance of trial and appellate counsel and misconduct by a police officer who testified at his trial. The trial court denied the petition for reasons stated on the record on September 30, 2005.
The arguments on appeal are based on defendant's claim that his counsel at trial and on direct appeal did not effectively respond to improper testimony given by the police officer who searched his car. Prior to jury selection, the trial court granted defense counsel's motion to bar testimony about two "crack pipes" that were found in his car at the time of his arrest. In response to a general question posed by the prosecutor, a police officer referred to the pipes. Defendant's trial attorney immediately objected, and the trial court immediately directed the jurors "to totally disregard that answer" and denied defense counsel's application for a mistrial. On direct appeal, defendant's attorney argued that the court erred in denying the request for a mistrial. This court rejected that claim.
On this appeal defendant presents the following arguments:
I. THE TRIAL COURT ERRED IN FAILING TO AFFORD THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO ADEQUATE LEGAL REPRESENTATION.
A. FACTUAL INTRODUCTION.
B. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT TRIAL BY VIRTUE OF TRIAL COUNSEL'S FAILURE TO REQUEST THAT THE COURT ISSUE ADDITIONAL CURATIVE INSTRUCTIONS MORE FORCEFUL AND COMPLETE THAN THE SINGLE SENTENCE UTILIZED BY THE COURT IN ADDRESSING COUNSEL'S MOTION FOR A MISTRIAL.
D. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE APPELLATE LEVEL.
E. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT TO AFFORD HIM AN EVIDENTIARY HEARING TO FULLY DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
II. THE DEFENDANT'S CONTENTION THAT HE WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL WAS NOT PROCEDURALLY BARRED.
The arguments lack sufficient merit to warrant any discussion in a written opinion. R. 2:11-3(e)(2).
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