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State v. Cunningham

November 2, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DELRICE CUNNINGHAM, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-10-1049.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2007

Before Judges Cuff, Lihotz and Simonelli.

Defendant Delrice Cunningham appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of trial and appellate counsel, as well as other State misconduct, and a request for a plenary hearing. We find no error or abuse of discretion by the PCR judge in his review. We affirm.

I.

After a nine-day jury trial, defendant was convicted of purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1), and weapon offenses in the shooting death of Huberston Dieujuste. Initially, the trial judge sentenced defendant to a fifty-year term of imprisonment with an eighty-five-percent period of parole ineligibility under the "No Early Release Act" (NERA), N.J.S.A. 2C:43-7.2, on the murder charge, and a concurrent five-year term with a two and one-half year period of parole ineligibility for the unlawful possession of a handgun. In an unpublished opinion, we affirmed defendant's conviction and remanded for resentencing, as NERA was inapplicable to the murder conviction. State v. Cunningham, No. A-1513-00 (App. Div. Apr. 11, 2003). After remand, the trial court imposed fifty-years imprisonment with a period of thirty years of parole ineligibility. Defendant's petition for certification was denied by the Supreme Court on July 21, 2003. State v. Cunningham, 177 N.J. 496 (2003).

Defendant's PCR application asserted issues of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and evidence tampering by the police. After argument, Judge Malone found: no deficient conduct by counsel, the prosecutor's comment to the grand jury insufficient to warrant a new trial, and nothing to suggest the State engaged in misconduct. He concluded defendant presented no basis for a plenary hearing and denied the PCR petition on May 24, 2006.

On appeal, defendant presents the following arguments for consideration:

POINT I.

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

A. TRIAL COUNSEL FAILED TO MAKE A TIMELY REQUEST FOR THE RECORDINGS OF THE POLICE RADIO TRANSMISSIONS DURING THE SURVEILLANCE.

B. TRIAL COUNSEL FAILED TO INVESTIGATE AND RETAIN AN EXPERT ON MENTAL COMPETENCY.

C. TRIAL COUNSEL FAILED TO MORE AGGRESSIVELY ARGUE THE INADMISSIBILITY OF EVIDENCE OF DEFENDANT'S POSSESSION OF A GUN ONE MONTH PRIOR TO THE SHOOTING.

POINT II.

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...


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