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State v. Pandure

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 5, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMIE PANDURE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 96-03-0371.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 20, 2010

Before Judges Skillman and Gilroy.

A jury found defendant guilty of murdering his wife. The trial court sentenced defendant to a seventy-five year term of imprisonment, with thirty years of parole ineligibility.

On defendant's direct appeal, we affirmed his conviction and sentence in an unreported opinion. State v. Pandure, No. A-1078-98T4 (July 25, 2001). The Supreme Court denied defendant's petition for certification. 170 N.J. 208 (2001).

Defendant filed a petition for post-conviction relief. Judge Neafsey denied defendant's petition for the reasons expressed in a comprehensive oral opinion.

On appeal, the Public Defender submitted a brief on defendant's behalf which presents the following arguments:

POINT I:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF TRIAL COUNSEL WAS ESTABLISHED.

A. TRIAL COUNSEL FAILED TO OBJECT TO THE STATE'S USE OF A TIME CHART DURING SUMMATION, FAILED TO HAVE IT ADMITTED FOR THE JURY'S CONSIDERATION AFTER THE STATE'S SUMMATION, AND FAILED TO PRESENT A DEFENSE GRAPHIC DISPLAY.

B. TRIAL COUNSEL FAILED TO OBJECT TO JUROR NO. 13 WHO CONTAMINATED THE JURY POOL.

C. TRIAL COUNSEL FAILED TO PURSUE THE JURY'S HAVING EXTRA-JUDICIAL INFORMATION.

D. TRIAL COUNSEL FAILED TO MOVE FOR A SPEEDY TRIAL, RESULTING IN DEFENDANT NOT BEING TRIED FOR MORE THAN FOUR YEARS AFTER HIS ARREST.

E. TRIAL COUNSEL FAILED TO REQUEST A LIMITING INSTRUCTION REGARDING THE JURY'S CONSIDERATION OF DEFENDANT'S FINANCIAL DISTRESS BEFORE HIS WIFE'S DEATH.

F. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION.

G. THE CUMULATIVE ERRORS REGARDING TRIAL COUNSEL'S INEFFECTIVENESS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED OR THAT HE BE AFFORDED AN EVIDENTIARY HEARING.

POINT II:

THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIMS IN HIS PRO SE PETITION. (Not Raised Below).

In addition, defendant submitted a pro se supplemental brief which presents the following arguments:

POINT I:

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS DUE TO TRIAL COUNSEL'S ERRORS AND THEREFORE HIS CONVICTION SHOULD HAVE BEEN REVERSED, OR AT LEAST, GRANTED AN EVIDENTIARY HEARING BECAUSE HE PRESENTED PRIMA FACIE PROOF THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, DEFENDANT IS ENTITLED TO A REMAND BECAUSE HE WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON HIS FIRST PETITION FOR POST-CONVICTION RELIEF (Partially Raised Below).

A. TRIAL COUNSEL FAILED TO OBJECT TO THE STATE'S USE OF A TIME CHART FULL OF MISREPRESENTATIONS DURING SUMMATION, AND ONCE PRESENTED BEFORE THE JURY, HAVE THE TIME CHART ADMITTED FOR THE JURY'S CONSIDERATION.

B. TRIAL COUNSEL FAILED TO OBJECT TO THE SEATING OF JUROR NO. 13, WHO CONTAMINATED THE JURY POOL, AND FAILED TO MOVE FOR A MIS-TRIAL DUE TO THE MISCONDUCT OF JUROR NO. 12 AND JUROR NO. 13.

C. TRIAL COUNSEL FAILED TO PURSUE THE JURY'S EXTRA-JUDICIAL INFORMATION.

D. TRIAL COUNSEL FAILED TO MOVE FOR THE DISMISSAL OF A FEMALE JUROR AFTER HAVING BEEN SEATED AND OBSERVING DEFENDANT IN RESTRAINTS, OR IN THE ALTERNATIVE, MOVE FOR A MISTRIAL.

E. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ASSIGNED ATTORNEY FAILED TO PREPARE AN ADEQUATE BRIEF, ADVANCE DEFENDANT'S CLAIMS WITH SUPPORTING AFFIDAVITS, AND FAILED TO PROVIDE ADEQUATE ASSISTANCE AT THE HEARING WITH RESPECT TO DEFENDANT'S FIRST PETITION FOR POST-CONVICTION RELIEF (Not Raised Below).

POINT II:

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE HE, AT LEAST, PRESENTED A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PCR COURT'S FINDINGS OF FACT ARE NOT FAIRLY SUPPORTED BY THE RECORD, THIS MATTER MUST BE REMANDED FOR FURTHER PROCEEDINGS.

We reject the arguments presented under Point I of the Public Defender's brief and Points I(A), (B) and (C) of defendant's pro se supplemental brief substantially for the reasons set forth in Judge Neafsey's oral opinion. Defendant's other arguments are clearly without merit. R. 2:11-3(e)(2).

Affirmed.

20100505

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