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State v. Allen

March 4, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
YUSEF ALLEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, 98-08-1208.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 4, 2008

Before Judges Stern, A.A. Rodríguez and C.L. Miniman.

Appellant filed a pro se supplemental brief.

Defendant appeals from an order, entered on September 20, 2005, denying his petition for post-conviction relief. We remand for further proceedings.

Defendant was convicted by a jury of murder, N.J.S.A. 2C:11-3a(1) and (2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a firearm, N.J.S.A. 2C:39-5b. The proofs presented at trial are detailed in our published opinion and need not be set out herein. State v. Allen, 337 N.J. Super. 259 (App. Div. 2001).

On his direct appeal, we affirmed the convictions and sentence of life imprisonment, but vacated the 85% parole ineligibility term imposed under the No Early Release Act (NERA), and remanded to the Law Division for imposition of a sentence of life imprisonment with thirty years to be served before parole eligibility. Defendant's subsequent petition for certification was denied. State v. Allen, 171 N.J. 43 (2002).

Defendant thereafter petitioned for post-conviction relief (PCR). On this appeal, defendant argues that his petition was erroneously denied and that he received ineffective assistance from trial, appellate and PCR counsel. We address the only two contentions of concern to us, which warrant the remand.

At the PCR hearing, counsel argued that defendant did not receive a fair trial because of prosecutorial misconduct. PCR counsel further argued that trial counsel's failure to accept either of two offers made by the trial judge to grant a mistrial amounted to ineffective assistance.*fn1 Counsel also argued that an affidavit obtained from John Korman constituted newly discovered evidence, warranting a new trial.

In his affidavit, Korman stated that, although he initially told police that he was not in the area at the time of the shooting, he was certain that defendant was not the person who shot the victim. The affidavit stated:

1. I am [] presently confined at New Jersey State Prison, in the City of Trenton, in the County of Mercer.

2. On October 15, 1997, at approximately 6:20 a.m., I was in the City of Plainfield, New Jersey, at the location of Prescott Place and West Third Street. While I was at this location I witnessed the shooting of Mr. Lannie Silver.

3. The person I saw shoot Lannie Silver was a light skinned black male, who appeared to be about 20 years old. He pulled the gun from his waist band and shot Mr. Silver a ...


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