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State v. Bryant

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 14, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERMAINE BRYANT, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 93-03-1078-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 4, 2007

Before Judges Skillman and Winkelstein.

Defendant, Jermaine Bryant, appeals from the Law Division's October 13, 2006 order denying his petition for post-conviction relief. We affirm.

After defendant was waived by the Family Part to the Law Division, an Essex County Grand Jury indicted him on March 17, 1993, charging him with second-degree aggravated assault; first- degree murder; third-degree unlawful possession of a weapon, a rifle; and second-degree possession of a weapon, a rifle, for an unlawful purpose.

Following a trial in January and February 1994, the jury convicted defendant of all charges. The court imposed an aggregate term of life plus ten years of imprisonment, with a thirty-five-year period of parole ineligibility. On direct appeal, we affirmed, State v. Bryant, 288 N.J. Super. 27 (App. Div. 1996), and the Supreme Court denied certification. 144 N.J. 589 (1996). On March 6, 2001, we denied defendant's first petition for post-conviction relief. State v. Bryant, A-3571-99 (App. Div. March 6, 2001).

On October 6, 2005, and April 24, 2006, defendant filed additional post-conviction relief petitions. The court denied those applications by order of July 25, 2006. In a written decision accompanying the order, the judge observed that [e]ach of the grounds raised [in defendant's most recent applications for post-conviction relief] have either been disposed of or could have been disposed of and raised in a timely fashion in the prior proceedings. . . . Although ineffective assistance of counsel claims are exempt from the bar of R. 3:22-4, it is clear that the ground of ineffective assistance of both trial and appellate counsel were raised in the defendant's prior petition for Post-Conviction Relief and rejected by both the motion judge and the Appellate Division. Any supplemental ground for ineffective assistance of counsel could have and should have been raised in the prior proceeding, there being no demonstration of any excusable neglect on [the] part of the defendant.

Defendant did not appeal from the July 25, 2006 order, but instead, on August 8, 2006, filed another petition for post- conviction relief. By letter dated October 13, 2006, and memorialized in an order of that date, the Law Division denied that application. Defendant sought reconsideration, which the court denied in a letter of October 27, 2006. The record does not contain an order memorializing the October 27, 2006 decision.

On appeal to this court, defendant raises the following nine points:

POINT ONE

THE POST-CONVICTION RELIEF JUDGE ERRED IN DENYING THE DEFENDANT[']S MOTION FOR POST-CONVICTION RELIEF, BY CONCLUDING THAT THE DEFENDANT COULD [have] RAISED THE CURRENT ISSUES IN A PRIOR PROCEEDING.

POINT TWO

THE POST-CONVICTION RELIEF JUDGE ERRED BY FAILING TO GRANT DEFENDANT[] P.C.R. CONCLUDING THAT THE DEFENDANT['s] PETITION IS MORE THEN FIVE YEARS AFTER JUDGMENT AND ANY GROUND FOR RELIEF NOT RAISED IN A PRIOR PROCEEDING RESULTING IN A CONVICTION OR IN A POST CONVICTION PROCEEDING OR IN ANY APPEAL IS BARRED.

POINT THREE

THE POST CONVICTION RELIEF JUDGE ERRED IN FINDING THAT DEFENDANT[']S CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF WAIVER COUNSEL WAS WITHOUT MERIT.

POINT FOUR

THE POST CONVICTION RELIEF JUDGE ERRED IN CONCLUDING THAT THE DEFENDANT['s] CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WAS WITHOUT MERIT.

POINT FIVE

THE POST CONVICTION RELIEF JUDGE FAILED TO NOTICE OR TO[] ADDRESS THE PLAIN ERROR BROUGHT FORTH WITHIN THE DEFENDANT[']S PETITION FOR POST CONVICTION RELIEF THAT VIOLATES THE DEFENDANT[']S 4th AMEND, 6th AMEND, AND 14th AMEND CONSTITUTIONAL RIGHTS.

POINT SIX

TRIAL JUDGE COMMITTED PLAIN ERROR BY DENYING THE DEFENDANT[']S REQUEST TO CHANGE OUT OF HIS PRISON CLOTHS INTO HIS SUIT FOR JURY SELECTION AND TRIAL[;] HERE THE TRIAL JUDGE VIOLATED THE DEFENDANT[']S, 6th AMEND, 14th AMEND CONSTITUTIONAL RIGHT OF DUE PROCESS.

POINT SEVEN

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THAT VIOLATED THE DEFENDANT[']S SIXTH AMEND. AND FOURTEENTH AMEND. CONSTITUTIONAL RIGHTS UNDER DUE PROCESS.

POINT EIGHT

THE STATE FAILED TO COMPLY WITH R.3:13-3[4](c) WITHIN (sic) PROVIDING THE DEFENDANT A COPY OF THE STATE BALLISTIC REPORT AND MEDICAL REPORT WHICH VIOLATES THE DEFENDANT[']S 6th AMEND, 14th AMEND, CONSTITUTIONAL RIGHTS.

POINT NINE

THE POST CONVICTION RELIEF JUDGE ERRED IN CONCLUDING THAT THE STATE['s] FAILURE TO PROVIDE THE DEFENDANT A COPY OF THE MEDICAL REPORT AND BALLISTIC REPORT DID NOT VIOLATE THE DEFENDANT[']S CONSTITUTIONAL RIGHTS, NOT TO PROVIDE THOSE ITEMS IS A CLEAR VIOLATION OF THE DEFENDANT[']S "FIFTH AMEND, SIXTH AMEND AND FOURTEENTH AMEND CONSTITUTIONAL RIGHT TO A FAIR TRIAL UNDER DUE PROCESS".

We have carefully reviewed the record in light of defendant's contentions and the applicable law. We are satisfied that his arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Winard in his letter opinions of July 25, 2006, October 13, 2006, and October 27, 2006. The issues raised by defendant were either raised or could have been raised in prior proceedings, or have otherwise been raised out of time. R. 3:22-4; R. 3:22-5; R. 3:22-12(a).

Affirmed.

20071214

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