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State v. Kalim

August 3, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAJHN KALIM, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-05-1186, 00-05-1187, 00-11-3129 and 00-11-3130.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 10, 2009

Before Judges Winkelstein and Gilroy.

Defendant Rajhn Kalim appeals from the May 10, 2007 order denying his petitions for post-conviction relief (PCR). We affirm.

Tried to a jury in February 2001, defendant was found guilty under Indictment No. 00-05-1186 of first-degree robbery (Count One); third-degree unlawful possession of a weapon (Count Two); and second-degree possession of a weapon for an unlawful purpose (Count Three). On the same day, the same jury found defendant guilty under Indictment No. 00-05-1187 of second-degree possession of a weapon by a convicted felon (collectively, the grocery store convictions).

On May 16, 2001, the court sentenced defendant on Indictment No. 00-05-1186: on Count One to a thirty-year term of imprisonment, subject to NERA;*fn1 and on Count Two to a five-year term of imprisonment, to run concurrent with the sentence imposed on Count One. The court merged Count Three with Count One. On the conviction for possession of a weapon by a convicted felon under Indictment No. 00-5-1187, the court sentenced defendant to a consecutive five-year term of imprisonment.

On appeal of the grocery store convictions, defendant argued in part that the trial court had improperly curtailed his counsel's cross-examination of Shelley Foster, the only witness who identified him as the perpetrator. We affirmed the convictions, but remanded for re-sentencing. State v. Kalim, No. A-0374-01 (App. Div. June 27, 2003). On November 24, 2003, the Supreme Court denied defendant's petition for certification. State v. Kalim, 178 N.J. 252 (2003).

On remand, the court sentenced defendant to a thirty-year term of imprisonment with a seventeen-year period of parole ineligibility on Count One, and to a concurrent five-year term of imprisonment on Count Two. On the conviction for possession of a weapon by a convicted felon, the court sentenced defendant to a five-year concurrent term of imprisonment.

In June 2001, defendant was tried to a jury and found guilty under Indictment No. 00-11-3130 of first-degree robbery (Count One); third-degree unlawful possession of a weapon (Count Two); and second-degree possession of a weapon for an unlawful purpose (Count Three). On the same day, the same jury found defendant guilty under Indictment No. 00-11-3129 of second-degree possession of a weapon by a convicted felon (collectively, the restaurant convictions).

On October 15, 2001, the court sentenced defendant on Indictment No. 00-11-3130: on Count One to a life term of imprisonment without parole, pursuant to N.J.S.A. 2C:43-7.1a; on Counts Two and Three, the court sentenced defendant to concurrent terms of five years and ten years, respectively. On the conviction under Indictment No. 00-11-3129 for possession of a weapon by a convicted felon, the court sentenced defendant to a ten-year concurrent term of imprisonment.

On appeal of the restaurant convictions, defendant argued in part that "the trial judge violated [his] right to present a defense by denying [his] request for an adjournment to consult with and present the testimony of an expert in the field of drug and alcohol intoxication." We affirmed, determining that defendant's arguments were meritless. R. 2:11-3(e)(2). State v. Kalim, No. A-1926-01 (App. Div. Jan. 21, 2003). On July 3, 2003, the Supreme Court denied defendant's petition for certification. State v. Kalim, 177 N.J. 489 (2003).

In March 2006, defendant filed a pro se petition for PCR, challenging the grocery store convictions. On November 4, 2006, assigned counsel filed a brief in support of defendant's petition, arguing "the defendant received ineffective assistance of counsel in that trial counsel failed to cross-examine a State's witness as to her abuse of drugs and how that might impact on her ability to observe and recollect." Specifically, defendant challenged the testimony of Shelley Foster, contending that trial counsel, after eliciting from Foster that she had been previously charged with possession of drugs, failed to question her "as to how long she had been using, how often she used, her drug of choice [or] whether she was using at the time of the incident about which she was giving testimony."

In July 2006, defendant filed a pro se petition for PCR, challenging the restaurant convictions. On January 21, 2007, assigned counsel filed a brief in support of defendant's petition, arguing that "the defendant received ineffective assistance of counsel in that trial counsel failed to assert an applicable ...


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