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State v. Demby

January 8, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TROY DEMBY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 01-02-0350 and 01-05-0866.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Graves and Grall.

Defendant Troy Demby appeals from the denial of his petition for post-conviction relief. He pled guilty to three counts of first-degree robbery, N.J.S.A. 2C:15-1, and possession of a handgun without a permit, N.J.S.A. 2C:39-5b. The charges were included in two indictments and based on two separate criminal episodes - robbery of a cab driver with a toy gun on September 1, 2000 and two robberies committed with an operable handgun in a convenience store on December 30, 2000.

Defendant entered his guilty plea after his motion to suppress the handgun used in the convenience store robbery was denied and trial on those robberies had commenced. In return, the State agreed to seek concurrent sentences for the crimes charged in both indictments and a term of no longer than ten years for robbery of the cab driver. The judge sentenced defendant to two concurrent fifteen-year terms of incarceration for the first-degree robberies committed on December 30, 2000; the sentences for those "violent" crimes are subject to NERA terms of parole ineligibility and parole supervision pursuant to N.J.S.A. 2C:43-7.2.*fn1 The judge also imposed a concurrent ten-year term of incarceration for first-degree robbery of the cab driver, and a concurrent four-year term for possession of a handgun without a permit, N.J.S.A. 2C:39-5b.

On direct appeal, this court affirmed defendant's sentence and the denial of his suppression motion. State v. Demby, No. A-6639-02 (App. Div. Jul. 18, 2005). The Supreme Count denied his petition for certification. 185 N.J. 298 (2005).

At the time of his plea, defendant acknowledged that on September 1, 2000, when he and Darnell Jones got into a taxi cab, they had a toy gun, which they "showed" to the cab driver before the driver surrendered his money. Defendant also admitted that on December 30, 2000, he and Raheem Turner went to a convenience store in Pleasantville. He had a .38 caliber revolver with him, which he "pointed" at the victims when he asked them for money. He took approximately $200.

The police pursued the perpetrators of the convenience store robberies that night. Turner was arrested near the Fox Run condominium complex in Pleasantville, where defendant lives. He gave the officers defendant's name and address, and defendant's mother opened the door when the police knocked. The police questioned defendant, and he surrendered the .38 caliber revolver he had used in the convenience store. Subsequently, the State tested the gun and determined that it was operable.

At the time of his guilty plea, defendant did not contest the State's report on operability.

Defendant was nineteen years old at the time of sentencing. His mother and stepfather both addressed the judge and urged leniency in recognition of defendant's remorse and his youth. In addition, his attorney highlighted mitigating factors. He stressed that defendant had no prior convictions and planned to complete his education and learn a trade. In imposing sentence, the judge considered defendant's age and the fact that these were his first convictions. The judge, however, determined that defendant's three violations of the conditions of probationary terms imposed as a consequence of juvenile adjudications and his prior commitment to the Training School for Boys indicated a risk of recidivism and need for deterrence.

Defendant's application for post-conviction relief was based on a claim of ineffective assistance of counsel. He raised several objections to counsel's performance at various stages of the proceedings, and the trial judge addressed each claim and concluded that defendant did not establish a prima facie case of "deficient performance" or "a reasonable probability" that the result would have been different if counsel had not made "unprofessional errors." State v. Preciose, 129 N.J. 451, 462-64 (1992).

On this appeal defendant's attorney presents the following issues:

I. THE COURT ERRED IN NOT GRANTING THE POST CONVICTION MOTION OF PETITIONER AS HE DID NOT RECEIVE HIS CONSTITUTIONALLY ...


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