On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-07-1182.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Baxter and Alvarez.
Defendant Darrell Milton appeals from a January 24, 2008 order that denied his first petition for post-conviction relief (PCR). We affirm.
Following a trial by jury, defendant was convicted of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1), and distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7. After appropriate merger, defendant was sentenced on the N.J.S.A. 2C:35-7 charge to a five-year term of imprisonment, subject to a three-year period of parole ineligibility.
On direct appeal, we affirmed his conviction. State v. Milton, No. A-5521-02 (App. Div. March 14, 2005). We rejected defendant's claim that the jury charges were inadequate, and that the assistant prosecutor's summation, in which she allegedly vouched for the credibility of her witnesses, denied him a fair trial. In an earlier appeal, we rejected defendant's claim that a State's witness, Sergeant Sabo of the Jersey City police department, rendered an expert opinion and testified to the ultimate issue in dispute. State v. Milton, No. A-0739-02 (App. Div. February 6, 2003).*fn1
At the PCR hearing that is the subject of this appeal, defendant presented the following arguments: 1) his rights were violated when this court reinstated the guilty verdict and refused to allow him a new trial; 2) his former trial attorney provided ineffective assistance by withdrawing from his case without filing a 42 U.S.C. § 1983 action on his behalf, and the PCR judge erred by denying his request for the appointment of counsel to file a damages action pursuant to 42 U.S.C. § 1983 against the Jersey City police department and the Hudson County Prosecutor's Office; 3) the State's proofs were insufficient to establish his guilt beyond a reasonable doubt; 4) the trial prosecutor engaged in prosecutorial misconduct when she presented evidence from a co-defendant; 5) Jersey City police withheld exculpatory evidence in violation of his constitutional rights; and 7) the sentence imposed was excessive.
Without affording defendant an evidentiary hearing, Judge Kracov denied defendant's petition. The judge ruled that defendant's claims should be rejected because some had already been rejected by this court and could not be relitigated by defendant in a PCR petition, and the balance were either "without merit, . . . conclusory or incomprehensible."
In particular, Judge Kracov held that: defendant's claim of insufficient evidence had already been considered and rejected by the Appellate Division; because the State is permitted to rely on evidence from a co-defendant, such a practice is not an instance of prosecutorial misconduct; defendant had the opportunity to raise the claim of prosecutorial misconduct on direct appeal, but did not do so, and was therefore barred from relitigating such claim in the context of the PCR petition; and the Jersey City police department had no legal obligation "to seek out exculpatory information from eyewitnesses."*fn2
The judge also held that the claim of an excessive sentence was unsupported by facts or governing law; defendant's confinement by the Department of Corrections (DOC) beyond the maximum date is not a claim that is cognizable in a PCR petition; and defendant's former attorney, who withdrew from representing him on the indictment, had no obligation to file a 42 U.S.C. § 1983 action on defendant's behalf. The judge concluded his findings by observing:
The bottom line in this case is that [defendant] had the case reviewed carefully by the Appellate Division three times. They found that he was convicted fairly . . . .
He has had all the due process anyone could expect. He has made a PCR application with not the slightest merit and it ...