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State v. Smith

January 2, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WALIF SMITH A/K/A DENIES, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-12-4185-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 10, 2008

Before Judges Parrillo and Lihotz.

Defendant Walif Smith appeals from a Law Division order denying his post-conviction relief (PCR) petition. Following the waiver of the Family Part's jurisdiction, N.J.S.A. 2A:4A-26, defendant was indicted and tried before the Law Division on a five count indictment. Defendant was convicted of felony murder, N.J.S.A. 2C:11-3(a)(3), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The remaining three charges were merged into the murder conviction. Defendant was sentenced for the murder to life imprisonment with a thirty-year period of parole ineligibility. For the weapons offense, a concurrent fourteen-year term of imprisonment was imposed. Appropriate fees and penalties were also imposed.

Defendant's conviction and sentence were affirmed in our unpublished opinion, No. A-4621-94 (App. Div. Feb. 18, 1997), and the Supreme Court denied certification on June 30, 1997. State v. Smith, 151 N.J. 72 (1997).

Defendant filed a PCR petition, alleging ineffectiveness of his trial and appellate counsel. Noting the PCR petition was filed beyond the five-year limitations period expressed by Rule 3:22-12, the PCR judge, nevertheless, reviewed the two substantive issues raised by defendant. Finding counsel was not deficient and defendant was not otherwise prejudiced by the alleged failure to conduct a complete investigation, Judge Rosenberg rendered a written opinion denying defendant's request for an evidentiary hearing along with his requests for relief.

On appeal, defendant presents the following issues for our review:

POINT ONE

THE COURT BELOW ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW TRIAL BECAUSE THE FAILURE OF TRIAL COUNSEL TO INTERVIEW A CRITICAL WITNESS HE WOULD ARGUE WAS RESPONSIBLE FOR THE CRIMES DEFENDANT WAS ACCUSED OF, AND WHO HE KNEW WAS INTERVIEWED BY THE STATE, DEPRIVED DEFENDANT OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT TWO

THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT A NEW TRIAL BECAUSE THE FAILURE OF TRIAL COUNSEL TO REQUEST A LIMITING INSTRUCTION ON THE PROPER USE OF OTHER CRIME EVIDENCE, PURSUANT TO N.J.R.E. 404b, AND OF APPELLANT COUNSEL TO RAISE THE ISSUE ON APPEAL, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT THREE

THE PCR COURT ERRED BY FAILING TO GRANT DEFENDANT AN ...


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