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State v. Downs

September 22, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ADOLPHUS DOWNS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-03-0324.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 26, 2008

Before Judges Payne and Alvarez.

On December 11, 1997, a jury convicted defendant, Adolphus Downs, of murder, N.J.S.A. 2C:11-3(a); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a prohibited weapon, a sawed-off shotgun, N.J.S.A. 2C:39-3(b). Defendant was ultimately sentenced to a sixty-year custodial term, subject to a thirty-year period of parole ineligibility, for the felony murder,*fn1 as well as a consecutive five-year term subject to a two-year period of parole ineligibility for possession of the sawed-off shotgun. Defendant's aggregate sentence is sixty-five years, subject to a thirty-two-year period of parole ineligibility.

Defendant now appeals pro se the denial of his fourth petition for post-conviction relief (PCR). The motion judge denied PCR without an evidentiary hearing in a decision dated March 6, 2007. For the reasons that follow, we affirm.

The charges result from the shooting death of Jose Rodriguez as he was preparing, on the morning of December 12, 1995 to drive two of his daughters to school. Briefly, Rodriguez was killed with a sawed-off shotgun at point-blank range during a planned armed robbery. Co-defendant Jermile Omar Mayo was the shooter, defendant was a participant in the robbery, and co-defendant Taknowa Thomas was the look-out.

Defendant raises the following points:

POINT I

DEFENSE COUNSEL'S FAILURE TO SUPPRESS FLAWED IDENTIFICATION VIOLATED DEFENDANT'S 14TH AMEND. RIGHT TO DUE PROCESS, AND 6TH AMEND. RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

PROCEDURAL VIOLATION OF R. 3:2-3 BY POLICE OFFICERS VIOLATED DEFENDANT'S RIGHTS UNDER N.J. AND U.S. CONSTITUTION TO EQUAL PROTECTION AND DUE PROCESS.

POINT III

TRIAL COURT ERRED WHEN DENYING PETITIONER'S CLAIM OF DEFENSE COUNSEL FAILURE TO REQUEST A SEVERANCE UNDER R. 3:15-2(b), (c); AND/OR OBJECT TO ...


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