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State v. Page

January 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID PAGE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-01-0008.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 9, 2009

Before Judges Lisa and Alvarez.

Defendant David Page appeals from the July 2, 2008 denial of his petition for post-conviction relief (PCR). We affirm.

A jury convicted defendant of six counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one through six); six counts of second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (counts seven through twelve); and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count thirteen). Following the jury verdict, defendant entered a guilty plea to one count of second-degree possession of a weapon by a previously-convicted person, N.J.S.A. 2C:39-7 (count fourteen).

On February 18, 2005, defendant was sentenced on count one to a mandatory extended term under N.J.S.A. 2C:43-7.1b (Three Strikes Law) of fifty years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On each remaining first-degree robbery conviction, defendant was sentenced to fifteen years subject to NERA, concurrent to count one. Counts seven through twelve were merged with their companion counts of first-degree robbery. The judge imposed seven years imprisonment with a five-year period of parole ineligibility on the second-degree possession by a previously-convicted person conviction, to be served consecutive to the other sentences. Defendant's aggregate sentence was fifty-seven years, subject to forty-eight and one-half years of parole ineligibility. His convictions and sentence were affirmed on direct appeal, except for the sentence on count fourteen.*fn1 State v. Page, No. A-4777-04 (App. Div. March 20, 2007) (slip op. at 3). Defendant's petition for certification was denied. State v. Page, 193 N.J. 223 (2007).

The PCR petition, including the request for an evidentiary hearing, was denied in an oral decision rendered on June 30, 2008. On appeal, defendant contends that the PCR judge erred in the application of procedural bars and on the merits:

POINT I - THE COURT MISAPPLIED THE APPLICABLE LEGAL STANDARDS IN DENYING POST-CONVICTION RELIEF BECAUSE OF PROCEDURAL BARS.

(A) THE INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENTS RAISED IN POST-CONVICTION RELIEF WERE NOT PROCEDURALLY BARRED BECAUSE THEY WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY EQUIVALENT" TO THE ISSUES RAISED ON DIRECT APPEAL.

(B) THE PROSECUTORIAL MISCONDUCT ARGUMENT RAISED IN POST-CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED BECAUSE IT COULD NOT HAVE BEEN FAIRLY ADJUDICATED BASED ON THE EXISTING TRIAL RECORD.

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION; TRIAL COUNSEL'S INADEQUATE CROSS-EXAMINATION; AND TRIAL COUNSEL'S FAILURE TO PRESENT A MEANINGFUL DEFENSE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ*fn2 TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.

(A) THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

(B) THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST IN HIS PETITION FOR POST-CONVICTION RELIEF.

POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ...


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