February 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARKEITH JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-02-0550.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2008
Before Judges Stern and C.L. Miniman.
Defendant was convicted by a jury before Judge Betty J. Lester of fourth degree aggravated assault as a lesser included offense, N.J.S.A. 2C:12-1b(4),*fn1 a firearm permit violation, N.J.S.A. 2C:39-5b, and possession of the firearm for unlawful purpose, N.J.S.A. 2C:39-4a. Judge Donald W. Merkelbach imposed concurrent sentences on these offenses, aggregating ten years in the custody of the Commissioner of Corrections with five years to be served before parole eligibility.*fn2 On the direct appeal, we affirmed the convictions but remanded to correct the sentence on the aggravated assault to include the mandatory Graves Act term. Given the shorter concurrent sentence for that crime, we noted it would make no difference in terms of real time. Defendant now appeals from the denial of PCR in the case tried before Judge Lester.*fn3 He contends:
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS THE TESTIMONY AGAINST DEFENDANT OFFERED BY THE FACT WITNESSES WAS UNTRUTHFUL AND SPECULATIVE AND, CONSEQUENTLY DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHTS AND A FAIR TRIAL
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL OF THE TRIAL COURT'S DENIAL OF AN EVIDENTIARY HEARING
We conclude these contentions have no merit and warrant only the following discussion in a written opinion. R. 2:11-3(e)(2). Defendant challenges the testimony of a State witness and the sufficiency of the evidence. However, as noted in our opinion on the direct appeal, the gun may not have been fired, but it didn't have to be. Fourth degree aggravated assault involved a pointing.
There is no inconsistent verdict despite the acquittals on the greater aggravated assaults, and even if there was, the Supreme Court's more recent opinions, like State v. Banko, 182 N.J. 44, 54-56 (2004), make clear that poses no defect in the result of this case. See also State v. Grey, 147 N.J. 4, 11, 16-18 (1996) (where the felony murder convictions were reversed because of the jury charge and acquittal of the underlying felony).
There is no claim that trial counsel was ineffective or deficient. In any event, we cannot conceive what defendant seeks to accomplish by his request for an evidentiary hearing. He does not raise any question about possible strategy or why trial counsel acted as she did, as opposed to a claim of evidentiary insufficiency. He raises issues which relate to questions properly presented to the jury to resolve.
We affirm the denial of PCR substantially for the reasons expressed by Judge Lester in her oral opinion of September 23, 2005.