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State v. Smith

September 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TIMMY SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 95-07-0916.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 18, 2007

Before Judges Coburn and Chambers.

Defendant, Timmy Smith, appeals from the October 17, 2005, order denying his petition for post-conviction relief. We affirm.

In 1997, a jury found defendant guilty of felony murder, N.J.S.A. 2C:11-3(a)(3); first degree robbery, N.J.S.A. 2C:15-1; second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree hindering apprehension, N.J.S.A. 2C:29-3(a) and N.J.S.A. 2C:29-3(b); and fourth degree attempt to unlawfully dispose of a weapon, N.J.S.A. 2C:39-9(d) and N.J.S.A. 2C:5-1, unlawful possession of a weapon, hindering apprehension and unlawful disposition of a weapon. On direct appeal, we ordered a merger of the second degree weapon offense, but otherwise affirmed. State v. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999).

Thereafter, defendant filed a petition for post-conviction relief, from the denial of which this appeal ensued.

We incorporate by reference our description of the facts in our prior opinion, id. at 391-92, in which we concluded that there was "overwhelming evidence of defendant's guilt . . . ." Id. at 400. Among other things, defendant testified at trial that he participated in the robbery, but denied possession or use of the murder weapon, or knowledge that one of his co- defendants was going to bring a gun to the robbery. His denials were contradicted by his statements to the police and to his brother, and by testimony from one of his accomplices.

Moreover, he admitted at trial that after the gun was drawn, supposedly by his accomplice, but before the shot was fired, he continued to strike the victim and demand money. Id. at 392.

On appeal defendant offers the following arguments for reversal of the order denying post-conviction relief:

POINT I

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

(A) TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE THE CASE

(B) TRIAL COUNSEL FAILED TO HAVE JOHNNY THOMPSON ...


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