On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94-05-0578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges Stern and Collester.
Defendant was convicted of murder, possession of a firearm for unlawful purpose, and unlawful possession without a permit. The unlawful purpose conviction was merged into the murder and defendant received a sentence of life with 30 years before parole eligibility and a concurrent sentence on the permit violation.
We affirmed the conviction on direct appeal, and the Supreme Court denied certification.
Defendant received an evidentiary hearing on his petition for post-conviction relief (PCR) which was premised on claims of ineffective assistance of counsel. Both defense counsel, retained counsel, William Demarco, and assigned trial counsel, Larry Smith who replaced Demarco, testified, as did defendant, and Judge Joseph Riva wrote a comprehensive formal opinion which denied the petition.
Judge Riva concluded that no limiting instruction was needed as to the drug paraphernalia found in defendant's apartment. Trial counsel explained why he had introduced the fact of its existence after the judge "reserved" decision on his motion to exclude the evidence and a potential witness, Chris Jenkins, indicated what his testimony would be. Counsel wanted to "minimize" the impact of the anticipated introduction of evidence on the State's case, as the fact defendant had paraphernalia would impact on the State's claim that the killing was part of a drug deal that "went bad." Judge Riva found that the evidence was res gestae and no limiting instruction was necessary.
We are satisfied that even if the evidence was not properly admissible as res gestae, the admission without an N.J.R.E. 404(b) limiting instruction would not warrant a new trial, and that is so even if the instruction should have been requested and given. While the issue is now different than if presented in an argument on direct appeal related to the absence of the instruction, we now know that a request for a limiting instruction would have been denied, and it is the absence of a request that is critical for the ineffectiveness of counsel contention. In any event, we are satisfied that even if a N.J.R.E. 404(b) limiting instruction should have been requested, the result of the trial would have been the same whether given or not. Moreover, Judge Riva rejected the contention that "even if the 'other crimes' evidence did not require a limiting instruction, the evidence was harmful to his defense."
Pursuant to Rule 3:9-1, the plea offers would have been discussed on the record by the time this case was tried. However, the transcript of status and pretrial conferences were not presented on the PCR.
Finally, we addressed issues concerning the prosecutor's summation on the direct appeal. Defendant now points to other errors in the summation and says they require PCR because we did not address these portions. As they were not previously raised when other portions were, there is a procedural bar to consideration of the claim, see R. 3:22-4, but they do not in any event appear to be so egregious to have warranted a mistrial or a new trial even if counsel had objected to the comments during summation.
The denial of PCR is affirmed for the reasons expressed in Judge Riva's formal opinion of April 26, 2006, as supplemented herein.
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