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State v. Powell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 28, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL POWELL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-06-0807.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 19, 2010

Before Judges Reisner and Yannotti.

Defendant Daniel Powell appeals from a March 7, 2008 order denying his petition for post-conviction relief (PCR). We affirm.

I.

The pertinent facts are as follows. After observing defendant sitting in a parked car for several hours, the police approached him, questioned him, and asked him to step out of the car. Instead, defendant drove away and crashed his car into a police vehicle. He then sped off again, and one of the officers fired three shots at his vehicle in an attempt to stop defendant from escaping. Defendant was eventually apprehended and was convicted of second degree eluding, N.J.S.A. 2C:29-2b, and third degree drug possession, N.J.S.A. 2C:35-10a(1).

On direct appeal, we affirmed the sentence of ten years with a four year parole bar, and rejected defendant's claim that the court should have suppressed evidence of drugs found in his car. We declined to address defendant's claim of ineffective assistance of counsel. State v. Powell, No. A-5905-02 (App. Div. July 21, 2004), certif. denied, 182 N.J. 428 (2005). Defendant then filed a PCR petition, which was denied by order dated April 11, 2006. On appeal of that denial, we considered and rejected defendant's argument that "his trial attorney failed to introduce evidence of disciplinary proceedings" against the officer who fired shots at defendant's vehicle. However, we remanded to the trial court to consider several other issues. State v. Powell, No. A-5420-05 (App. Div. Oct. 11, 2007). On remand, the trial judge once again denied the PCR in an order dated March 7, 2008, which is the subject of this appeal.

II.

On this appeal defendant once again contends that his trial counsel should have introduced evidence that one of the police officers was disciplined for firing shots at the car defendant was driving. He also claims in general terms that the trial court should have conducted an evidentiary hearing on his PCR, because he "established a prima facie case of prosecutorial misconduct and ineffective assistance of trial counsel." We find no merit in these contentions.

In the first PCR proceeding, the PCR court addressed and rejected defendant's claim concerning the officer's disciplinary record, and we addressed and rejected the argument in our October 11, 2007 opinion. Defendant is therefore barred from re-raising the issue. See R. 3:22-5. Defendant's contention that he was entitled to an evidentiary hearing is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20100128

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