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State v. Scales

August 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY SCALES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 00-06-0974 and 00-08-1372.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2008

Before Judges A. A. Rodríguez and C. S. Fisher.

Defendant Barry Scales appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

In 2001, following a jury trial, defendant was convicted of the charges set forth in Indictment 00-08-1372, i.e. third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count 1); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5b(3) (count 2); and third-degree possession with intent to distribute CDS within a school zone, N.J.S.A. 2C:35-7 (count 3). At a simultaneous bench trial, defendant was convicted of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. The judge merged the three indictable convictions and imposed a five-year term with a thirty-month parole disqualifier; and a six-month term on the disorderly persons conviction.

After another jury trial, on unrelated charges listed in Indictment 00-06-0974, defendant was convicted of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count 1); possession with intent to distribute CDS, N.J.S.A. 2C:35-5b(3) (count 2); and possession with intent to distribute CDS within a school zone, N.J.S.A. 2C:35-7 (count 3). At a simultaneous bench trial, the judge convicted defendant of the disorderly persons offenses of resisting arrest, N.J.S.A. 2C:29-2a; and possession of marijuana under fifty-grams, N.J.S.A. 2C:35-10a(4). The judge merged the three indictable convictions and imposed an extended ten-year term with a five-year parole disqualifier to run consecutively to the sentence imposed on the convictions following the first trial; and two concurrent six-month terms on the two disorderly persons convictions. On direct appeal, we affirmed all convictions and sentences. No. A-996-01T4 (App. Div. February 23, 2004), certif. denied, 179 N.J. 374 (2004) and 180 N.J. 356 (2004).

Defendant filed pro se a verified PCR petition as to all convictions. David Sachs, Esq., represented defendant at the hearing. Defendant raised the following arguments in the petition: (1) ineffective assistance of trial counsel; (2) police misconduct; (3) prosecutorial misconduct; and (4) judicial misconduct. One allegation of ineffective assistance is based on counsel's failure to call two witnesses to the suppression hearing, Tyrone Matthew and Keven Graham. No supporting certification nor affidavit from these witnesses was provided. Defendant simply certified that: "they were in court the day the trial began. They would have testified that I was not selling any drugs."

The other allegation of ineffective assistance of counsel is related to the sequence of the two trials. According to defendant, the charges set forth in Indictment 00-08-1372 were to be tried first. However, the judge decided that the charges set forth in the other indictment would be tried first.

Defendant claims that trial counsel failed to request a postponement and that the sequence of trial was the product of judicial misconduct.

The trial judge denied the PCR petition. The judge concluded that the ineffective assistance of counsel claims were waived because they were not raised on direct appeal.

Defendant appeals contending:

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

A. The PCR Court Erred In Finding That Defendant Had Waived The Ineffective Assistance of Counsel Argument By ...


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