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State v. Ross

July 28, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 05-11-2509 and 06-02-0468.

Per curiam.


Submitted April 21, 2009

Before Judges Wefing and LeWinn.

Defendant Lenny Ross appeals from the February 15, 2008 order of the trial court denying his petition for postconviction relief (PCR). For the reasons that follow, we affirm.

Defendant was charged in two separate indictments with a total of eight weapons-related offenses that occurred on July 22 and 29, 2005. At the time he was indicted on these charges, defendant was on probation in connection with a prior conviction for possession of heroin with intent to distribute.

On April 13, 2006, defendant entered into a negotiated plea agreement whereby he pled guilty to two charges of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. At his plea hearing, defendant admitted to being in possession of a nine millimeter handgun on July 22 and 29, 2005. The police reports of July 22, 2005 further indicated that an individual named Jamil Prevard had been shot in the foot near the apartment in which defendant was found with the weapon. Prevard, however, was described in the report as "uncooperative and... stated [that] he could not identify the shooter."

On May 5, 2006, defendant was sentenced in accordance with the plea agreement to two concurrent eight-year terms of imprisonment with a five-year period of parole ineligibility. This sentence was to run concurrent with any sentence defendant received for violation of his probation.

Defendant did not appeal his conviction and sentence. He did, however, file a PCR petition on December 15, 2006, alleging that (1) the trial judge improperly failed to consider certain mitigating factors in imposing sentence; and (2) trial counsel was ineffective for failing to argue these mitigating factors on defendant's behalf.

Specifically, defendant contended that the court should have considered mitigating factors two, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm[,]" N.J.S.A. 2C:44-1(b)(2); three, "[t]he defendant acted under a strong provocation[,]" N.J.S.A. 2C:44-1(b)(3); five, "[t]he victim of the defendant's conduct induced or facilitated its commission[,]" N.J.S.A. 2C:44-1(b)(5); and eleven, [t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[.]" N.J.S.A. 2C:44-1(b)(11).

The gravamen of defendant's argument was that "only a few weeks prior to th[e] incident[s]... he was shot twice in the right leg... [and] was in possession of th[e] firearm for the sole reason of protection." Defendant also claimed that he was not only under the influence of marijuana, but that he was also "intoxicated because he drank so much alcohol the day and night of the offense." Defendant claimed that, if he had not been under the influence of marijuana or alcohol, "he would have not been carrying any type of firearm,... and,... on seeing someone reach for a weapon and aggressively approach him in a threatening manner,... he would have [ru]n away... and possibly reported the incident to [the] police." Defendant reiterated that the court "must try to understand [his]... mental state..., remembering that he was a victim of a shooting himself." Regarding the "hardship" factor, defendant claimed that he was the father of two young boys whom he supported financially when he was able to find employment.

Defendant argued that his trial attorney was ineffective in "fail[ing] to establish the facts, make a reasonable investigation into the [S]tate's case, to interview witnesses and present evidence on [his] behalf, [leaving him] no defense." Defendant further claimed that, "during [his] initial meetings with [his] attorney,... [he] told [the attorney] that [he] was shot by another individual in the recent past." Defendant asserted that his attorney "never brought it up again or asked [him] any of the details concerning the shooting... [and] never discussed the possibility of getting a psychological evaluation...."

The same judge who had presided over defendant's plea and sentence heard his PCR claims. Assigned counsel stated at the outset of the PCR hearing that he had submitted a brief and "reports[.]" None of those documents, however, has been provided to this court.

Regarding the claim that counsel failed to investigate defendant's psychological state in connection with ...

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