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State v. Nunnally

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 15, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KARIEM NUNNALLY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 01-11-4562.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2008

Before Judges Wefing and Yannotti.

A grand jury returned Indictment No. 01-11-4562 against defendant, charging him with second-degree conspiracy to commit robbery and/or kidnapping, N.J.S.A. 2C:5-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of first-degree kidnapping, N.J.S.A. 2C:13-1b; and one count each of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree terroristic threats, N.J.S.A. 2C:12-3; first-degree carjacking, N.J.S.A. 2C:15-2; second-degree eluding, N.J.S.A. 2C:29-2b; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3e.

Another grand jury returned Indictment No. 02-2-600, charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.

In October 2002 defendant entered a negotiated plea of guilty to charges of conspiracy, robbery, carjacking and possession of a weapon for an unlawful purpose in the first indictment and aggravated assault and possession of a weapon for an unlawful purpose in the second indictment. In return, the State agreed to recommend a total custodial sentence not to exceed twenty years, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, to be served consecutively to the five-year sentence, with a three-year period of parole ineligibility, that defendant was then serving.

Defendant appeared before the trial court for sentencing in December 2002. On Indictment 01-11-4562, the trial court merged the conviction for conspiracy and sentenced defendant to separate terms of thirteen years in prison for robbery and for carjacking, both subject to NERA, and to four years in prison for possession of a weapon, all to be served concurrently. On Indictment 02-2-600, the trial court sentenced defendant to five years in prison for aggravated assault, subject to NERA, and a concurrent three years in prison for possession of a weapon for an unlawful purpose. The trial court directed that this sentence be served concurrently with the sentence on Indictment 01-11-4562 and that both be served concurrently to the sentence defendant was then serving. Defendant's aggregate sentence was thirteen years, subject to NERA, well below State's initial recommendation.

Defendant filed an appeal with respect to his sentence under Indictment 01-11-4562, contending it was excessive. His appeal was considered on an Excessive Sentence Oral Argument calendar, and the judgment was affirmed. State v. Nunnally, No. A-2347-03T4 (App. Div. May 24, 2004).

Thereafter, defendant filed a motion pursuant to N.J.S.A. 2A:84A-32a, for post-conviction DNA testing. Defendant sought to have testing performed on the blood-stained shirt he was wearing at the time of his arrest for the crimes charged in 01-11-4562. He argued that if the blood turned out not to be from the victim who had been stabbed in the arm during the incident, it would demonstrate that he was not involved in the crimes. The trial court denied his motions, and defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

At the time defendant entered his guilty plea, he provided a detailed factual basis.*fn1 At the time he provided this factual basis, he was under oath. He told the court that he and another individual, known to him only as "Rock" were in the vicinity of Martin Luther King Boulevard and Court Street in Newark on the night of May 14, 2001, when they were approached by two women in a car who requested their assistance. The women explained that they had gone to Johnson Avenue to purchase narcotics but had been robbed of their money. Defendant and "Rock" got into the car and the women drove back to the scene, but the perpetrators could not be located. The women drove the two men back to where they had met them, and at that point defendant and Rock grabbed jewelry from them. Rock fled, but defendant forced his way into the car and drove off with the women in the car screaming for help. During the incident, he stabbed one of the women repeatedly in her forearm. He drove for several blocks and then got out of the car and fled on foot. The police apprehended him several blocks away, and the women immediately identified him. At the time of his apprehension and identification, he was wearing a blood-stained shirt. According to the pre-sentence report, the victim of the stabbing required sixteen stitches to close her wounds.

The statute directs that a trial court "shall not grant" a motion for post-conviction DNA testing unless it is satisfied that all of the following elements have been established:

(1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion;

(2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;

(3) the identity of the defendant was a significant issue in the case;

(4) the convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the offender;

(5) the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial;

(6) the evidence sought to be tested meets either of the following conditions:

(a) it was not tested previously;

(b) it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results;

(7) the testing requested employs a method generally accepted within the relevant scientific community; and

(8) the motion is not made solely for the purpose of delay.

[N.J.S.A. 2A:84A-32a(d).]

The trial court gave a detailed oral opinion setting forth its reasons for denying defendant's motion. It noted that defendant, by pleading guilty, had removed the question of identity as a significant issue in the case. It also held that even if the DNA testing of the shirt defendant was wearing at the time of his arrest revealed blood other than that of the victim in this incident, there was not a reasonable probability that defendant would be permitted to withdraw his guilty plea. Whether the blood was that of defendant or of some other unidentified person would not go to the question of whether defendant participated in this incident.

Defendant through counsel raises one argument on appeal:

THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR RELIEF UNDER N.J.S.A. 2A:84A-32a.

As to this issue, we affirm, substantially for the reasons stated by Judge Giles in his oral opinion of February 15, 2006.

Defendant has filed a supplemental brief pro se in which he raises the following additional arguments:

POINT I THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR REHEARING AND THE REASSIGNMENT OF COUNSEL, IN ORDER THAT A FULL RECORD CAN BE MADE ON ALL MATTERS WHICH LAY OUTSIDE THE RECORD, PARTICULARLY A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS.

POINT II THE LAW DIVISION ERRED BY APPLYING AN INCORRECT ANALYSIS OF THE FACTS TO THE POST-CONVICTION DNA LAW, WHERE IT ELEVATED AND GAVE UNDUE WEIGHT TO DEFENDANT'S GUILTY PLEA, AND LESS WEIGHT TO THE ISSUE OF IDENTITY, FOR PURPOSES OF DNA TESTING.

We perceive no merit to these contentions. As to the first, defendant has not filed a petition for post-conviction relief, and we are thus unable to remand the matter to the trial court on that issue. We note in this regard that defendant was convicted in 2002, and more than five years have elapsed since that conviction. R. 3:22-12(a).

Defendant's second pro se argument is, essentially, a contention that the trial court attributed undue weight to his guilty plea. The argument does not warrant extended discussion in a written opinion because it would have no precedential value. R. 2:11-3(e)(2).

The order under review is affirmed.


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