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State v. Mitchell

March 5, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARLIVIA MITCHELL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 00-09-1087 and 00-09-1095.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 8, 2010

Before Judges Rodríguez, Reisner and Chambers.

Defendant Arlivia Mitchell appeals from an October 5, 2006 order denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was convicted by a jury of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); and second degree possession of a handgun by one who has been previously convicted of robbery, N.J.S.A. 2C:39-7b. Defendant was sentenced to an aggregate term of seven years, with an eighty-five percent period of parole ineligibility, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On his direct appeal he raised the following issues:

POINT I: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below.) POINT II: THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF SECOND DEGREE AGGRAVATED ASSAULT WAS AGAINST THE WEIGHT OF THE EVIDENCE IN THE ABSENCE OF SUFFICIENT TESTIMONY ESTABLISHING THAT THE VICTIM SUFFERED SERIOUS BODILY INJURY. (Not Raised Below.)

POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S QUESTIONING OF A POLICE OFFICER WHICH ELICITED THE DEFENDANTS' INVOCATION OF THE MIRANDA RIGHTS, THEREBY INFRINGING UPON HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT. (Not Raised Below.)

POINT IV: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT III CHARGING AGGRAVATED ASSAULT. (Not Raised Below.)

POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSSIVE.

In a supplemental brief, defendant raised the following points:

POINT I: DEFENDANT'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY WAS VIOLATED AND COMPROMISED [DUE] TO THE FACT A JUROR AT TRIAL TAINTED DECISION OF VERDICT BECAUSE SHE WAS FRIENDS WITH [THE TRIAL JUDGE] WHO PRESIDED OVER THE DEFENDANT'S TRIAL.

POINT II: THE PROSECUTOR MADE IMPERMISSIBLE STATEMENTS DURING OPENING ARGUMENT IN VIOLATION OF ...


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