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State v. Jones

October 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KASIB JONES, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-01-0479.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2009

Before Judges Skillman and Fuentes.

Defendant was indicted together with co-defendant Demetrius Middleton for conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and 2C:15-1; armed robbery of Shazam Tahir, in violation of N.J.S.A. 2C:15-1; felony murder of Shazam Tahir, in violation of N.J.S.A. 2C:11-3(a)(3); purposeful or knowing murder of Shazam Tahir, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); armed robbery of Hafiz Hosein, in violation of N.J.S.A. 2C:15-1; felony murder of Hafiz Hosein, in violation of N.J.S.A. 2C:11-3(a)(3); purposeful or knowing murder of Hafiz Hosein, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); unlawful possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b), and possession of a handgun with the purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4(a).

At his first trial, defendant was acquitted of conspiracy to commit robbery, both armed robbery charges, both felony murder charges, and the charge of the purposeful and knowing murder of Shazam Tahir. However, the jury failed to reach a verdict with respect to the charge of the purposeful or knowing murder of Hafiz Hosein and the two weapons offenses. Consequently, the trial court declared a mistrial as to those charges.

The jury acquitted Middleton of the charge of the purposeful or knowing murder of Hafiz Hosein*fn1 but failed to reach a verdict with respect to the charge of the purposeful or knowing murder of Shazam Tahir and the two weapons offenses. Consequently, the trial court declared a mistrial as to those charges.

At the retrial on the charges with respect to which the first jury had failed to reach a verdict, defendant was found guilty of the purposeful or knowing murder of Hafiz Hosein and the weapons offenses, and Middleton was found guilty of the purposeful or knowing murder of Shazam Tahir and the weapons offenses. The trial court sentenced defendant to life imprisonment, with sixty-three and three-quarters years of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for murder, and a concurrent five-year term for possession of a handgun without a permit. The court merged defendant's conviction for possession of a weapon for an unlawful purpose into his conviction for murder.

On appeal, we affirmed defendant's convictions in an unreported opinion. State v. Jones, No. A-6896-99 (Jan. 10, 2003). We also affirmed defendant's sentence, except that we vacated the period of parole ineligibility imposed under NERA and remanded for entry of an amended judgment of conviction that included the thirty-year period of parole ineligibility mandated by N.J.S.A. 2C:11-3b. The Supreme Court denied defendant's petition for certification. 177 N.J. 220 (2003).

We also affirmed Middleton's convictions and sentence, except for the parole ineligibility period imposed under NERA, State v. Middleton, No. A-4239-99 (Nov. 29, 2001), and the Supreme Court also denied his petition for certification. 171 N.J. 337 (2002).

On or about March 15, 2005, defendant filed a petition for post-conviction relief. On June 28, 2006, the trial court (the same judge who tried the case) denied defendant's petition.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT I: CONSTITUTIONAL VIOLATIONS REQUIRING REDRESS PURSUANT TO R. 3:22-2 WERE IGNORED AT PCR. THUS RELIEF IS MANDATED UNDER THE LAW OF POST CONVICTION RELIEF PURSUANT TO BOTH FEDERAL AND STATE CONSTITUTIONS. PCR COUNSEL FAILED TO EFFECTIVELY PUT FORWARD PRO SE ISSUES PRESENTED.

POINT II: PCR COUNSEL FAILED TO ARGUE ADDITIONAL SIGNIFICANT TRIAL COUNSEL ERROR WHICH WOULD HAVE SATISFIED THE TWO PRONG TEST OF STRICKLAND V. WASHINGTON, 466 U.S. 668, 694, 104 S.CT. 2052, 2068, 80 L.ED. 2D 674, 698 (1984), UNITED STATES V. CRONIC, 466 U.S. 648, 104 S.CT. ...


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