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State v. Brown

February 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARVIN BROWN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11-4356.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2008

Before Judges Lisa and Alvarez.

Defendant Marvin Brown appeals from a February 8, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was convicted in Essex County of murder, N.J.S.A. 2C:11-3, and was sentenced on October 27, 2000, to an extended life term subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a thirty-five year parole disqualifier pursuant to the Graves Act, N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:43-7(a)(6). On the same indictment, defendant was also convicted by the jury on counts of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a), which were merged into the murder count. On the additional conviction for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), defendant received a concurrent five-year term. The sentences were imposed consecutive to the sentence that defendant was then serving for federal crimes.

Thereafter, we remanded for resentencing as the version of NERA in effect when the crime occurred did not impose an 85% parole disqualifier on convictions for murder.*fn1 Accordingly, defendant's current sentence is now an extended life term subject to a thirty-five year parole disqualifier pursuant to the Graves Act.

Defendant filed his PCR petition on May 8, 2006, and a letter brief was thereafter filed by assigned counsel on November 13, 2006. Oral argument was conducted on January 26, 2007, and Judge Petrolle's order denying relief was entered on February 8, 2007.

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE OF DEFENDANT'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF THE JUDGMENT OF CONVICTION

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

A. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL ATTORNEY DID NOT CROSS-EXAMINE ...


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