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State v. Smith

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KAREEM SMITH, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-06-1609.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2010

Before Judges Fuentes and Gilroy.

Defendant Kareem Smith appeals from the order of the trial court denying his post conviction relief (PCR) petition. We affirm.

An Essex County grand jury indicted defendant and his two co-defendants, Sharif Jones and Anthony Pearson, of first degree robbery, N.J.S.A. 2C:15-1, two counts of second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39- 4a, and two counts of third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. A jury found defendant guilty on all counts. On January 8, 2002, Judge Lester sentenced defendant to an aggregate term of eighteen years with an eighty- five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

We affirmed defendant's conviction and sentence on direct appeal. State v. Smith, No. A-6377-01 (App. Div. Sept. 3), certif. denied, 178 N.J. 251 (2003). By order dated November 26, 2007, the trial court denied defendant's motion to correct an alleged illegal sentence. On December 14, 2007, defendant filed a pro se PCR petition alleging, inter alia, ineffective assistance of trial and appellate counsel. Specifically, defendant argued that his trial counsel: (1) failed to argue that the police stopped his car illegally on the pretext that he had a broken taillight because the officer did not issue a summons for this alleged motor vehicle infraction; (2) failed to challenge the propriety of an one-on-one show-up; and (3) failed to exclude improper incriminating testimony presented by one of the arresting officers.

Defendant's PCR petition came before Judge Costello on October 28, 2008. After hearing argument from counsel, Judge Costello denied the petition as time-barred under Rule 3:22- 12(a). The judge also found that defendant had failed to establish a prima facie case of ineffective assistance of counsel under the standards established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant now appeals raising the following arguments:

POINT I.

THE PCR COURT ERRED IN HOLDING THAT THE DEFENDANT'S PCR PETITION WAS PROCEDURALLY BARRED BY THE FIVE YEAR STATUTE OF LIMITATION SET FORTH IN R. 3:22-12(a).

POINT II.

THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR PETITION WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL

A. Defendant's Trial Counsel Rendered Ineffective Assistance of Counsel by Failing to Request a Wade Hearing or to Otherwise Challenge the Victims' One-On-One Show-Up Identification of the Defendant.

B. Defendant's Trial Counsel Rendered Ineffective Assistance of Counsel by Eliciting Incriminating Evidence Regarding the Defendant From Officer Turzani on Cross-Examination.

C. Defendant's Trial Counsel Rendered Ineffective Assistance of Counsel by Failing to File a Motion to Suppress Evidence on the Grounds That the Vehicle's Defective Tail Light was a Pretext for the Stop.

D. Appellate Counsel Rendered Ineffective Assistance By Failing To Raise the Above-Referenced Issues On Direct Appeal.

POINT III.

TRIAL COUNSEL'S ERRORS WERE CUMULATIVE AND CREATED A REASONABLE PROBABILITY THAT THEY MATERIALLY AFFECTED THE OUTCOME OF THE DEFENDANT'S CASE

POINT IV.

THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF SUPPORT HIS REQUEST FOR POST-CONVICTION RELIEF

We reject these arguments and affirm substantially for the reasons expressed by Judge Costello in her memorandum of opinion dated October 28, 2008.

Affirmed.

20100709

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