On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Parrillo and Ashrafi.
Defendant James Lewter appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
In February 2002, defendant was convicted by a jury of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, fourth- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. After merger of counts, defendant was sentenced to seventeen years in prison, with eighty-five percent of the term to be served before parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On defendant's direct appeal, we affirmed his conviction and sentence. State v. Lewter, No. A-5270-01T4 (App. Div. Nov. 6, 2003). The Supreme Court denied his petition for certification. State v. Lewter, 179 N.J. 312 (2004).
We recount the facts of the underlying criminal episode as stated in our earlier opinion affirming the judgment of conviction:
On the evening of April 7, 1999, James Lewter went to visit his uncle, William Everett, and his family at their house on Taylor Street in Orange. Lewter and several others were sitting around, drinking beer on the porch in front of the house. Tina Wright, Lewter's cousin, and her 10-year old son were standing in the narrow street, talking with someone sitting in a car that was double-parked in front of the house. At approximately 8:00 p.m. the victim, David Hanson, came down the street in his pick-up truck and encountered the double-parked car. Chevelle Derrick, a next door neighbor, testified that Hanson waited for five minutes before becoming frustrated and pulling around the double-parked car. As he passed, Tina Wright, who was intoxicated at the time, shouted at Hanson to slow down, because her son was near the street. Hanson then stopped his truck and jumped out, cursing and threatening to kill everyone. As he did so, he pulled a brown paper bag from his truck and raised it, keeping his right hand inside of the bag while cursing.
The people in front of the house told Hanson to leave, but he continued to curse with the brown bag still in his hand. Shamelle Wright, Tina Wright's sister, who lived in the Taylor Street house, called the police because she saw Hanson pulling a "shiny object" out of the brown paper bag and thought it was a gun. In response to Shamelle Wright's call, Orange Detective Tyrone Grundy arrived and stopped Hanson's car a block away. He spoke with Hanson and learned that there were peanuts in the bag. He then reported to Shamelle Wright that Hanson did not have a gun. She believed that the detective told her that Hanson had no gun but that he had a silver tool of some type in the bag and she conveyed this information to the others on the porch and in front of the house.
Approximately 10 or 15 minutes later, Hanson returned, angry because the others had called the police. He again got out of his truck, yelling words in Jamaican as Lewter described it.
Lewter testified that he was afraid Hanson had retrieved a gun so he and his friend Cash walked toward the street armed with aluminum baseball bats. According to Lewter, Hanson reached underneath the driver's seat of his truck to try and retrieve something. Lewter feared Hanson was reaching for a gun. Lewter reached for his bat which was leaning against the pickup truck, grabbed it and struck Hanson on his arms and shoulders. Cash hit Hanson in the head with his bat. One of the witnesses described that blow to Hanson's head as having been so hard that she heard a loud crack. Hanson then fell to the ground, bleeding profusely, and tried to roll underneath his truck.
Lewter testified that he then stopped hitting Hanson with the bat, but admitted that he kicked Hanson once or twice in the arms and elbows, and that he hit or kicked him in the stomach and thigh as well. Accounts given by the witnesses varied about whether Cash continued to hit Hanson with the bat or not, and they varied with respect to Lewter's role in the incident, but all of them agreed that others intervened to end the fight and that by that time another 911 call had been placed.
Hanson then got up, stared at the porch, and managed to drive his truck away from the scene. He was taken to the hospital where surgeons placed an intracranial pressure monitor into his skull to relieve swelling of his brain. Medications were prescribed and Hanson was placed on life support. Hanson died on April 12, 1999, five days after being attacked by Cash and Lewter. Dr. Junaid Shaikh, the medical examiner, performed an autopsy on Hanson's body. He found that Hanson had a fractured skull, bruises on his right shoulder and knee, and superficial injuries to his upper left arm. ...