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State v. Brown

July 14, 2009

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



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictments Nos. 98-04-1607; 98-07-3317; 99-02-0863; 01-01-0301. Accusation No. 01-03-404.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2009

Before Judges Carchman and Parrillo.

Defendant David Brown appeals from a Law Division order denying his petition for post-conviction relief (PCR). He argues that his guilty plea to carjacking was not supported by an adequate factual basis and that counsel was constitutionally ineffective for allowing the plea to proceed. We disagree and affirm.

Between 1998 and 2001, defendant was charged in four separate indictments and one accusation with a total of eighteen crimes, ranging from third-degree drug possession, N.J.S.A. 2C:35-10a, to first-degree carjacking, N.J.S.A. 2C:15-2. He resolved these matters by entering into two plea agreements.

The first was entered on March 20, 2000. Defendant pled guilty to third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count 3 of Indictment No. 98-04-1607); first-degree robbery, N.J.S.A. 2C:15-1 (count 1 of Indictment No. 98-07-3317); and two counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts 1, 2 and 3 of Indictment No. 99-02-863). In exchange for defendant's guilty plea, the State agreed to recommend an overall sentence of twelve years imprisonment with an 85% parole ineligibility, and to dismiss the remaining counts of those indictments.

The second plea agreement was entered one year later, on March 23, 2001. At that time, defendant pled guilty to two counts of first-degree carjacking, N.J.S.A. 2C:15-2; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree eluding, N.J.S.A. 2C:29-2b (counts 1, 4, 3, 6 and 7 of Indictment No. 01-01-301). He also pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12- 1b, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (counts 1 and 2 of Accusation No. 01- 03-404). In exchange for defendant's guilty pleas, the State recommended an overall sentence of 25 years imprisonment with an 85% period of parole ineligibility, to run consecutively to the sentence imposed on Indictment Nos. 98-07-3317, 99-02-863 and 98-04-1607. All remaining counts of the indictment and accusation, and all counts of the other two indictments (Indictment Nos. 01-03-406 and 01-03-405), would be dismissed.

The court, however, indicated that it would most likely impose a concurrent sentence of 22 years imprisonment with an 85% parole ineligibility.

At his first plea appearance in 2000, defendant admitted to possessing heroin with the intent to distribute it within 1000 feet of the Montgomery Street School in Newark on February 5, 1998; to robbing Derrick Brady on March 27, 1998, by inflicting serious bodily injury on him while committing a theft; and robbing Tanfiq Ismail on September 1, 1998, by threatening him with a handgun without a permit.

At his second plea appearance in 2001, defendant admitted to committing an aggravated assault upon Rahman Hall on June 7, 2000, by recklessly shooting him with a handgun, which he possessed to use unlawfully against Hall. He also admitted that on September 3, 2000, while in Newark, he and a co-defendant, Jeffrey Melvin, stole a motor vehicle from Keisha Crumbly while threatening her with a gun, which he possessed to use unlawfully against the victim. He further admitted to inflicting bodily injury upon an occupant of that car, Darryl Hayes, while in the course of stealing it, and possessing a handgun while in the commission of that crime with the intent to use it unlawfully against Hayes. And finally, defendant admitted to eluding police officers on September 3, 2000, in the vehicle he had carjacked from Keisha Crumbly.

Specifically, as to the carjacking incident, defendant gave the following factual basis:

[DEFENSE COUNSEL]: And is it true that you and Jeffrey Melvin on September 3rd, 2000 in the City of Newark did attempt or actually steal a motor vehicle from ...


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