On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-08-3556.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2009
Before Judges Baxter and Alvarez.
This is an appeal from the denial of defendant Alterick Kelly's petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant raises the following point through counsel:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL/APPELLATE COUNSEL, IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.
In his pro se brief, defendant adds:
POINT ONE THE PCR COURT'S RULING DENYING AN EVIDENTIARY HEARING AND PCR RELIEF WAS NOT SUPPORTED BY SUFFICIENT AND CREDIBLE EVIDENCE IN THE RECORD THEREFORE THE ORDER DENYING THE PCR SHOULD BE REVERSED AND THE APPROPRIATE RELIEF SHOULD BE GRANTED.
We reject defendant's contentions and affirm.
On June 13, 2000, a jury convicted defendant of the first-degree aggravated manslaughter of Derrick Powell, N.J.S.A. 2C:11-4a, as a lesser-included offense of murder (count one); the aggravated manslaughter of Jhidoniane Anderson,*fn1 also as a lesser-included offense of the original charge of murder (count two); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count seven); and second-degree possession of a firearm for unlawful purpose, N.J.S.A. 2C:39-4a (count eight). Defendant was sentenced on July 28, 2000, to thirty years imprisonment on count one, subject to eighty-five percent parole ineligibility in accord with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; twenty years subject to NERA on count two, consecutive to count one; five years imprisonment on count seven, concurrent to count two and consecutive to count one; and ten years with five years of parole ineligibility on count eight, concurrent to count two and consecutive to count one. Defendant's direct appeal was denied,*fn2 and his petition for certification was also denied on October 21, 2002. State v. Kelly, No. A-1744-00 (App. Div.), certif. denied, 174 N.J. 548 (2002).
On August 24, 2004, defendant filed this pro se petition for PCR and was thereafter assigned representation through the Office of the Public Defender. Oral argument was conducted and the petition denied on January 11, 2008.
The shooting incident which resulted in the convictions occurred in Newark on April 29, 1998. Defendant's co-defendants, DeShawn Stith and Stephan Whitley, claimed that it was defendant's idea to murder Powell and Anderson. Stith and Whitley both testified at defendant's trial that because of an ongoing drug turf dispute, defendant decided that they had to kill the victims in order to avoid being killed by them. Accordingly, during the early morning hours of April 29, while each man was armed with a handgun, they walked the victims into a backyard. All three opened fire and then fled.
Police were immediately called to the crime scene. A trail of blood led them to a nearby apartment, where upon being admitted they saw defendant holding a handgun, standing behind the person who opened the door. When the police entered, defendant quickly left the room. When defendant testified, he denied holding a gun, insisting that the officer had mistaken a black cordless phone for a weapon. The blood trail came from a bullet wound to defendant's hand. He claimed the injury was inflicted when he attempted to intercede between Stith and Whitley and the victims, whom he said Stith and Whitley were planning to rob. Stith and Whitley were also present in the apartment.
Stith and Whitley entered guilty pleas to two aggravated manslaughter charges. In exchange for their guilty pleas and their agreement to testify truthfully in defendant's trial, Whitley received an aggregate sentence of twenty-four years subject to NERA, ...