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State v. Phillips

October 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEBORAH PHILLIPS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-04-0517.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2009

Before Judges Rodríguez and Reisner.

Defendant Deborah Phillips appeals from a trial court order dated February 25, 2008 denying her petition for post-conviction relief (PCR). We affirm.

I.

The facts are set forth at length in Judge Almeida's thorough written opinion dated February 25, 2008, and need not be repeated here. In brief, defendant went out with three other women for a social evening. On the way home, despite the pleas of her friends, defendant insisted on driving while extremely intoxicated. She lost control of the car, which hit a utility pole, killing two of her companions and injuring a third woman. Defendant gave a statement to the police in which she admitted drinking but claimed she did not remember driving on the night of the accident. However, at the trial, the surviving passenger testified that defendant was the driver. The State also produced expert testimony establishing that defendant had been driving at the time of the accident.

Defendant was convicted of two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5a, and third-degree assault by auto, N.J.S.A. 2C:12-1c(2). She was sentenced to two consecutive ten-year terms subject to the No Early Release Act, and a consecutive eighteen-month sentence. We affirmed her conviction and sentence on direct appeal. State v. Phillips, No. A-0668-03 (App. Div. Feb. 8, 2005), certif. denied, 183 N.J. 585 (2005).

In a detailed twenty-four page written opinion, Judge Almeida rejected defendant's PCR petition. He determined that the majority of defendant's claims were barred, because they had been raised and rejected on her direct appeal or because they could have been raised on direct appeal. R. 3:22-4; R. 3:22-5. The judge further concluded that defendant's former trial counsel was not ineffective for failing to present expert witnesses. The attorney had submitted a certification attesting that he consulted an accident reconstruction expert, but the expert advised him that he could not give a favorable opinion for the defense. The attorney also consulted a DNA/hair analysis expert, who likewise was unable to provide an opinion favorable to the defense.

The judge rejected defendant's claim that her counsel failed to relay the State's plea offers. Based on her former attorney's certification, and his own recollection of the case, Judge Almeida found that defendant adamantly refused to consider accepting a plea offer. He also found no ineffective assistance in counsel's failure to file an array of pre-trial motions which the judge concluded would have been baseless. Judge Almeida concluded that a proposed witness, Mindy Garcia, would not have helped defendant's case, since Garcia saw defendant lying next to the driver's side door. He also rejected defendant's challenge to her sentence based on State v. Natale, 184 N.J. 458 (2005).

II.

On this appeal, defendant raises the following points for our consideration:

POINT I: THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON [HER] CLAIMS OF ...


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