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State v. Brandon

May 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BERNARD BRANDON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-08-2779.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 29, 2009

Before Judges Lyons and Espinosa.

Defendant Bernard Brandon appeals from an order denying his post-conviction relief (PCR) application. Following a jury trial, defendant was found guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4c; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced on the manslaughter conviction to thirty years imprisonment, with fifteen years parole ineligibility. Concurrent terms of ten years with a five year parole disqualifier and five years, with a two-and-one-half year parole disqualifier, were imposed respectively for aggravated assault and possession of a weapon without a permit. The conviction for possession of a weapon for an unlawful purpose was merged into the other convictions. Appropriate fees and penalties were also imposed. We affirmed his conviction on appeal on March 19, 2001. State v. Brandon, No. A-6265-98T4 (App. Div. Mar. 19, 2001). The Supreme Court denied defendant's petition for certification on July 5, 2001. State v. Brandon, 169 N.J. 608 (2001).

Defendant filed a pro se PCR petition on or about August 17, 2001. An amended petition was filed on December 21, 2004, by assigned counsel.

PCR hearings were conducted on March 16, April 11, May 31, and June 21, 2006. On June 21, 2006, the PCR court entered an order denying relief. On August 31, 2006, defendant appealed the order denying him relief and on April 23, 2008, we temporarily remanded the matter to the PCR court to reconstruct the record of its factual findings and legal conclusions. On August 7, 2008, the PCR court rendered an opinion on the record, again denying PCR relief. The matter is now before us on appeal.

The facts, as apparently found by the jury, are stated in our earlier opinion as follows:

During the early morning hours of March 12, 1993, Reginald Johnson and Donald Jamison were sharing some heroin in the hallway of a building. Rose Jackson, the "common-law" wife of Reginald Johnson, waited outside the building and a man named Dobson was standing nearby. Defendant approached Dobson and asked if there was "any product." Dobson said no and defendant then asked Jackson if there was any heroin in the hallway. She replied that she did not know. Defendant went into the building and confronted Johnson and Jamison. They told defendant they were not selling drugs but defendant would not accept that response. There was some yelling back-and-forth and defendant pulled out a gun. Johnson and Jamison attempted to flee up a flight of stairs, but were followed by defendant. Several shots were fired by defendant and both Johnson and Jamison were hit. Jamison died of his wounds. An extended police investigation ensued and eventually focused on defendant. By early 1994, the police had contacted defendant's mother and his employer, letting them know defendant was wanted for questioning. Defendant, however, was not apprehended until May 1996, when the police received an anonymous tip that defendant was at a certain location in Newark. He was approached by several officers and told to remove his hands from his pockets.

Defendant refused to do so and was grabbed from behind by one of the officers. In defendant's hand was a switchblade. [State v. Brandon, supra, No. A-6265-98T4 (slip op. at 3).]

On appeal, defendant now raises the following issues for our consideration:

POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. The prevailing legal principles regarding claims of ineffective assistance of counsel, evidentiary hearings and petitions for post-conviction relief.

B. Trial counsel was remiss by allowing the prosecutor, without any objection, to elicit testimony during re-direct examination of Rose Jackson regarding her testimony previously identifying the defendant as the perpetrator during two ...


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