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State v. Boxton

February 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERSCHEL BOXTON A/K/A HERSHEL BOXTON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-08-3405.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Cuff and Payne.

Defendant, Herschel Boxton, was convicted of charges arising from burglaries committed on March 25, 1997; of robbery, felony murder and unlawful possession of a handgun arising from events occurring on March 30, 1997; and of unlawful possession of a .357 magnum handgun on April 9, 1997. He was sentenced on May 19, 1998 to life imprisonment, subject to a thirty-year parole disqualifier, for the felony murder, to concurrent five-year terms for the weapons charges and to concurrent five-year terms on charges arising from the burglaries, to be served consecutively to the sentence imposed for the felony murder. Defendant's total sentence was therefore life plus five years, subject to a thirty-year parole disqualifier.

Defendant appealed, arguing

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR SEPARATE TRIALS ON THE MARCH 25TH BURGLARY AND THE MARCH 30TH HOMICIDE.*fn1

POINT II

THE COURT ERRED IN FAILING TO INSTRUCT THAT DEFENANT COULD BE FOUND GUILTY OF THEFT EVEN IF HIS CO-DEFENDANT WAS GUILTY OF ROBBERY.

We affirmed defendant's convictions in an unpublished decision. State v. Boxton, no. A-1456-98T4 (App. Div. January 31, 2000).

On April 27, 2004, defendant filed a pro se petition for post-conviction relief, which, after counsel was assigned, was argued orally on March 26, 2007 and denied without a testimonial hearing. Defendant has appealed that denial. Through counsel, he has presented the following arguments:

The Court should reverse the denial of defendant's petition for ...


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