On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-06-02534.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Defendant, Malcolm Stovall, appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On July 16, 2003, a jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1 (count one); the lesser- included offense of second-degree reckless manslaughter,*fn1 N.J.S.A. 2C:11-4(b)(1) (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count four). The trial judge initially merged the conspiracy into the robbery and the reckless manslaughter into the felony murder. On September 5, 2003, defendant was sentenced to thirty years with thirty years' parole ineligibility on the felony murder, and a concurrent twenty years on the robbery subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's convictions were affirmed on direct appeal, except that the State acknowledged that the robbery should merge with the felony murder. State v. Stovall, No. A-2229-03 (App. Div. June 24, 2005) (slip op. at 6). Accordingly, an amended judgment of conviction was entered which merged all offenses into count three, the felony murder. Defendant's petition for certification was denied. State v. Stovall, 185 N.J. 298 (2005).
The motion judge, who also presided over the trial, denied the PCR petition, including the request for an evidentiary hearing, in an oral decision rendered on November 14, 2006. The only issues raised on this appeal that were actually argued to the motion judge are that the cross-examination of the co-defendant who testified against defendant was impermissibly restricted, and that the judge should have given Model Jury Charge (Criminal), "Accomplice Testimony" (1999). All other contentions are raised for the first time on this appeal:
POINT I PETITIONER-APPELLANT'S CONVICTION MUST BE REVERSED SINCE PETITIONER-APPELLANT HAS BEEN DENIED EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND POST-CONVICTION COUNSEL PURSUANT TO THE U.S. CONSTITUTION, AMENDMENT VI AND XIV THE NEW JERSEY CONSTITUTION OF 1947, ART. 1 PARA. 10 AND STATE V. RUE, 175 N.J. 1 (2002).
A. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE TRIAL, APPELLATE AND POST-CONVICTION COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE EVIDENCE AT TRIAL CLEARLY REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSES OF THEFT AND ASSAULT AS TO THE CHARGES OF ROBBERY AND AS THE PREDICATE OFFENSE TO FELONY MURDER AND SUCH ISSUE WAS NOT RAISED BY TRIAL, APPELLATE OR POST-CONVICTION COUNSEL.
B. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE TRIAL, APPELLATE AND POST-CONVICTION COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE EVIDENCE AT TRIAL CLEARLY REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON THE ISSUE OF SELF-DEFENSE AND TRIAL, APPELLATE AND POST-CONVICTION COUNSEL FAILURE TO RAISE THE SELF-DEFENSE ISSUE.
C. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST- CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL WAS DENIED FULL CROSS-EXAMINATION OF A CRITICAL STATE'S WITNESS WITH RESPECT TO HIS POSSESSION OF DRUGS AND/OR CHARGES RELATING TO THE POSSESSION OF DRUGS THAT HE INCURRED ON THE NIGHT OF THE HOMICIDE WHICH ISSUE WAS NOT RAISED BY APPELLATE COUNSEL (RAISED ON THE POST-CONVICTION RELIEF PETITION).
D. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE EVIDENCE AT TRIAL CLEARLY REQUIRED THE TRIAL COURT TO INSTRUCT THE JURY ON THE PROPER MANNER TO CONSIDER CO-DEFENDANT TESTIMONY.
POINT II THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.
POINT III THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT ...