January 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL RICHARDS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 00-01-0045.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Rodríguez, Yannotti and Chambers.
Defendant Michael Richards appeals from the denial of his petition for post-conviction relief (PCR), raising numerous issues including ineffective assistance of trial and appellate counsel. We affirm.
Defendant was convicted by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count three); and second-degree distribution of cocaine within 500 feet of public housing or a public park, N.J.S.A. 2C:35-7.1 (count four). He was sentenced to ten years of imprisonment with five years of parole ineligibility on count four and received a concurrent sentence of five years on count two. Counts one and three were merged into counts two and four respectively. The sentence ran consecutively with a sentence on an unrelated offense.
The evidence that gave rise to these convictions is described in further detail in our decision affirming the conviction and sentence and by the trial court in its PCR decision. We therefore provide the following abbreviated version of events.
On July 20, 1998, an undercover detective purchased three bags of cocaine from an individual in Manahan Village in Morristown. The person selling the cocaine was wearing distinctive clothing. After making the purchase, within one to two minutes the detective radioed his back-up with a description of the person who had sold him the cocaine. Within thirty to forty-five seconds of receiving that information, the back-up officer went to the location, saw the person matching the detective's description, and recognized that person as defendant. One year later defendant was arrested on the narcotics charges noted above, and two years later he was convicted by a jury and thereafter sentenced.
We affirmed the conviction and sentence on appeal. State v. Richards, Docket No. A-5560-01 (App. Div. April 23, 2003).
Defendant thereafter filed a PCR petition. The trial court held an evidentiary hearing in which defendant and defendant's trial counsel testified. In a lengthy oral opinion the court denied the relief.
Defendant now appeals the denial of his post-conviction relief application raising the following points.
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to request additional discovery concerning the involvement of a confidential informant and failed to request an adjournment to allow an investigation.
B. Trial counsel failed to seek the identity of the confidential informant.
C. Trial counsel failed to challenge the admissibility of the drug tests.
D. Trial counsel was ineffective during opening and closing statements.
E. Trial counsel failed to effectively cross-examine Sergeant Meehan and failed to object to his non-responsive testimony.
F. Trial counsel failed to move for dismissal on the basis of the State's unreasonable delay in proceeding with the case.
G. Trial counsel's strategy was unreasonable and ineffective.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
After a careful review of the record, arguments of counsel, and the governing law, we affirm substantially for the reasons set forth by Judge Ahto in his comprehensive oral decision placed on the record on May 17, 2007.
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