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State v. Johnson

February 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARKEITH JOHNSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-04-1069, 00-04-1070, and 00-02-0550.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2008

Before Judges Stern and C.L. Miniman.

Defendant was tried by a jury before Judge Donald Merkelbach, and convicted of unlawful possession of a weapon, (N.J.S.A. 2C:39-5b), and possession of hollow point bullets, (N.J.S.A. 2C:39-3f) (indictment 00-04-1069), and possession by a convicted felon (N.J.S.A. 2C:39-7b) (indictment 00-04-1070), and sentenced to concurrent terms aggregating fifteen years with seven to be served before parole eligibility, the extended term imposed on the convicted felon offense. The sentences were made consecutive to concurrent sentences, aggregating ten years with five years to be served before parole eligibility, imposed the same day by Judge Merkelbach on offenses resulting in convictions before Judge Betty Lester.

After we affirmed the convictions and the Supreme Court denied certification, defendant petitioned for post-conviction relief (PCR). Defendant now appeals from the denial thereof.

He argues:

POINT I

NO OTHER CONCLUSION CAN BE REACHED BUT THAT COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL

a. At the very least the matter must be remanded to the trial court as to Points One and Two of Defendant's Petition for Post Conviction Relief since these were not considered by the trial court

b. Trial counsel provided ineffective assistance failing to demonstrate any confidence in the defendant being acquitted of the charges rather than attempting to force the defendant to plea

c. Trial counsel rendered ineffective assistance because she failed to subpoena Officer Velazquez who would have testified that the defendant produced a valid registration and insurance card

d. Trial counsel was ineffective in failing to present Dr. Kern's report at the time of sentencing in support of a general mitigating factor

e. Trial counsel was ineffective for failing to move to suppress the weapon as being the result of an illegal motor vehicle stop

POINT II

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL OR, ALTERNATIVELY, IN FAILING TO VOIR DIRE THE JURORS INDIVIDUALLY AFTER THEY OVERHEARD ...


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