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State v. Moore

May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEROY MOORE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-08-0965.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 21, 2009

Before Judges Graves and Grall.

Defendant Leroy Moore appeals from an order dated June 29, 2007, denying his petition for post-conviction relief (PCR). After reviewing the record in light of defendant's contentions, we affirm.

In a seven-count indictment, defendant was charged with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third- degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count three); second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five); third- degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six); and fourth-degree possession of a knife under circumstances not manifestly appropriate, N.J.S.A. 2C:35- 5(b) (count seven). Following a jury trial, defendant was found guilty on counts two, three, four, and five; but he was acquitted of counts one and seven. Count six was dismissed at the request of the State because the jury was unable to reach a unanimous verdict on that count.

At sentencing on December 15, 2003, the court merged counts two and three into count four, and defendant was sentenced to an eight-year prison term with three years of parole ineligibility for possession of cocaine with intent to distribute within 500 feet of a public park. The court imposed a concurrent nine- month sentence for resisting arrest. In addition, pursuant to a negotiated plea on a separate indictment, defendant was sentenced to a concurrent four-year term for third-degree theft of a motor vehicle.

In an unreported decision, we affirmed defendant's convictions and sentence, State v. Moore, No. A-3739-03T4 (May 27, 2005), and the Supreme Court denied his petition for certification, 185 N.J. 38 (2006). In our prior opinion, we stated:

The evidence the jury considered involved incidents during the early afternoon of May 17, 2002. According to Ellen Winosky, she left her home to deliver money to an acquaintance who needed it to buy food for her children. As she walked toward the woman's home, someone came up behind her, held a knife to her neck, demanded money, went through her pockets and took the cash. A second man on a bicycle wearing a "doo-rag" on his head watched while the first man robbed her. After he had her money, the man who took it addressed the man on the bike referring to him as "Leroy."

Winosky's testimony about the robbery was contradicted by Joanne Rompa. According to Rompa, she introduced Winosky to defendant that day and saw her give him a one-hundred dollar bill. According to Rompa, Winosky later confided that she intended to accuse defendant of robbing her.

Winosky reported the crime and accompanied a detective while he drove around the area to see if she could identify the perpetrators. Winosky saw defendant standing on the basketball court in a park and identified him.

An officer on patrol, who had heard reports about the robbery and Winosky's identification, was in the area. He drove his police car into the park and toward the basketball court. Defendant approached the officer, who told him he was under arrest. Defendant pushed away from the officer and ran. As the officer followed, he saw defendant trying to take something from the pockets of his pants as he ran. He could not tell whether defendant succeeded. After apprehending defendant, the officer retraced the path of flight and found thirty-seven balls of aluminum, which contained cocaine. At the time of his arrest defendant said, "I never robbed anyone; all I do is sell drugs."

On the basis of this evidence, the jury acquitted defendant of charges related to the robbery of Winosky and convicted him of the ...


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