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State v. Szemple

March 10, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CRAIG SZEMPLE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 91-12-2414.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 6, 2008

Before Judges Parker, R. B. Coleman and Lyons.

Defendant Craig Szemple appeals from an order dated October 12, 2006, denying his third petition for post-conviction relief (PCR). Defendant was convicted on January 24, 1995, of the 1977 murder of Juanita Simmons, after a jury trial. Defendant was subsequently sentenced to a term of life imprisonment consecutive to a life sentence previously imposed pursuant to a Morris County indictment. Because we substantially agree with the opinion of the PCR judge, Judge Kevin J. Callahan, we affirm.

The detailed facts in this case are set forth in our opinion of May 5, 1997, and we incorporate them by reference. State v. Szemple, No. A-2977-94T4 (App. Div. May 5, 1997) (slip op. at 3), certif. denied, 151 N.J. 76 (1997). By way of summary, on January 13, 1977, defendant went to New York City in the company of his brother, where he met the victim, a prostitute. After engaging in sexual relations with the victim in his car, defendant strangled the victim with a piece of clothesline. He and his brother later dumped the body near a set of iron steps on a cliff in Jersey City. In 1991, defendant's brother was questioned by the police and ultimately revealed what he witnessed in January 1977.

On December 18, 1991, defendant was indicted and charged with murder. On November 19, 1992, the court heard and decided defendant's motion to dismiss the indictment on the ground that New Jersey lacked jurisdiction because the victim died in New York. Thereafter, a jury trial was held from January 17 to January 24, 1995. At the trial, defendant elected not to testify. Defendant's younger brother did recount the statement that he had earlier given police implicating defendant in the murder. Defendant's brother was the major witness in the trial. On February 23, 1995, defendant was sentenced to a term of life imprisonment to be served consecutively with the sentence imposed for his conviction for murder based on a Morris County indictment.

On May 9, 1995, a notice of appeal was filed. On May 5, 1997, we denied defendant's appeal. The Supreme Court denied certification. State v. Szemple, 151 N.J. 76 (1997). One point of that appeal is identical to a point raised in this appeal, that is, that trial counsel was deficient because of alleged extraordinary ethical breaches and conflicts of interest.

Defendant filed his first PCR sometime in 2000. On May 2, 2001, defendant's first PCR was dismissed without prejudice. Thereafter in May 2001, defendant pro se filed a motion for reconsideration. In July 2001, PCR counsel also filed a motion for reconsideration on defendant's behalf. Before the PCR court could rule on the motions for reconsideration, defendant filed a second PCR on September 27, 2001. That petition alleged that trial counsel was ineffective and that there was prosecutorial misconduct, particularly with respect to discovery issues.

The PCR judge heard oral argument on October 15, 2001, at which time defendant was granted an adjournment to decide if he wished to pursue his claim that PCR counsel was ineffective. On February 22, 2002, the PCR judge found that there was no ineffective assistance of PCR counsel. On November 19, 2002, the PCR judge permitted DNA testing to be performed on both hairs and blood found on the clothing of the victim. On April 9, 2003, the second PCR was dismissed because the DNA test results substantially undermined defendant's claim. On June 15, 2006, this third PCR application was filed. On October 12, 2006, the PCR judge issued a written opinion and executed an order which dismissed the third PCR. This appeal ensued.

On appeal, defendant presents the following arguments for our consideration:

POINT I

PCR COUNSEL FAILED TO EFFECTIVELY REPRESENT HIS CLIENT ...


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