On Appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-06-909.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Payne and Messano.
Michael Hentz was convicted in absentia of fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(2), and third-degree possession of marijuana with the intent to distribute it, N.J.S.A. 2C:35-5a(a) and N.J.S.A. 2C:35-5b(11). Following merger of the conviction for fourth-degree possession into the conviction for the third-degree crime, defendant was sentenced to an extended ten-year term of imprisonment with a five-year parole disqualifier pursuant to N.J.S.A. 2C:43-6(f). The convictions resulted from overwhelming evidence of defendant's crimes, consisting of 1.46 pounds of marijuana, as well as three scales, $12,320 in cash, and documents identifying defendant as the occupant of the premises, seized by the police in a search of defendant's apartment pursuant to a validly-issued search warrant. On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Hentz, No. A-391- 02T4 (App. Div. December 4, 2003). Certification was denied by the Supreme Court. State v. Hentz, 179 N.J. 312 (2004).
Following exhaustion of his appeals, defendant moved for post- conviction relief, and was denied that remedy without a testimonial hearing. The present appeal then ensued. In his appellate brief, defendant raises the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
A) TRIAL COUNSEL'S CONTINUED REFERENCE TO DEFENDANT'S REQUEST FOR AN ATTORNEY AT THE TIME OF HIS ARREST IMPROPERLY COMMENTED ON DEFENDANT'S RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL REQUIRING REVERSAL SINCE SUCH REFERENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
B) DEFENDANT'S CONVICTION MUST BE REVERSED SINCE TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE TERM "COURT ORDERED" SEARCH WARRANT BEFORE THE JURY AND/OR FAILED TO REQUEST A CURATIVE INSTRUCTION REGARDING THE TESTIMONY CONCERNING THE SEARCH WARRANT.
C) THE POST-CONVICTION COURT FAILED TO RULE ON THE ISSUE OF WHETHER OR NOT TRIAL COUNSEL WAS INEFFECTIVE ON THE ISSUE OF IMPROPER EXPERT TESTIMONY BEFORE THE JURY THAT THE SCALE FOUND WAS POSSESSED BY THE "TYPE OF PERSON WHO DEALS DRUGS."
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE SINCE COUNSEL FAILED TO RAISE REVERSIBLE ISSUES ON APPEAL.
A) APPELLATE COUNSEL FAILED TO RAISE TRIAL COUNSEL'S CONTINUED REFERENCE TO DEFENDANT'S REQUEST FOR AN ATTORNEY AT THE TIME OF HIS ARREST [WHICH] IMPROPERLY COMMENTED ON DEFENDANT'S RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL REQUIRING REVERSAL ...