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State v. Shannon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY SHANNON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-10-1241.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2010

Before Judges Kestin and Newman.

Defendant, Gregory Shannon, appeals from the trial court's denial of his petition for post-conviction relief. We affirm.

In 2003, defendant was convicted of carjacking, N.J.S.A. 2C:15-2 and N.J.S.A. 2C:2-6, a first-degree crime; second-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon by certain persons, N.J.S.A. 2C:39-7. The trial court imposed the following sentences: on the carjacking conviction, imprisonment for thirty years with fifteen years of parole ineligibility; on the merged aggravated assault and third-degree weapon convictions, a concurrent prison term of ten years with five years of parole ineligibility; and on the second-degree weapon possession conviction, a consecutive prison term of ten years with five years of parole ineligibility.

On direct appeal, in an unpublished opinion rendered on June 13, 2005, docket no. A-2104-03T4, we affirmed the convictions and the sentences. The Supreme Court denied certification, 186 N.J. 266 (2005).

Defendant filed a pro se petition for post-conviction relief in 2007. Both he and his attorney submitted briefs in support of the petition. Judge Subryan, who had presided over the trial in the matter, denied the petition for post-conviction relief for reasons expressed in an extensive written opinion rendered on April 23, 2008. On appeal from that denial, defendant raises the following issues:

I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL DEPRIVED [DEFENDANT] OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

A. [Defendant] was deprived of his constitutional right to effective assistance of counsel under the United States Constitution and the New Jersey Constitution.

B. Trial counsel failed to object to the jury charge.

C. Trial counsel failed to represent [defendant] effectively during the trial.

II. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY [DEFENDANT].

Among his ineffective assistance arguments, defendant contends, for the first time on appeal, that trial counsel's "cross-examination was woefully inadequate, particularly as it related to [the victim's] testimony concerning [defendant's] role in the incident and alleged involvement with the Bloods gang." Without any concrete allusions to how the cross-examination might have been better, this argument lacks the power to persuade us that it constitutes an adequate ground for granting the post-conviction relief sought.

With regard to defendant's argument that he was entitled to an evidentiary hearing on his application for post-conviction relief, we note that Judge Subryan gave defendant every opportunity to establish the existence of a prima facie basis for his petition, see State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005); see also State v. Marshall, 148 N.J. 89, 157, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d. 88 (1997), even to the unusual extent, after hearing counsel, of inviting defendant, himself, to address the court "as to why your post-conviction-relief motion should be granted." Defendant declined that invitation.

Judge Subryan conducted the post-conviction relief proceeding in a commendably fair and meticulous fashion. We discern no misapplication of discretion or error of law in his denial of the petition. We affirm substantially for the reasons announced in his written opinion. All of the arguments advanced on appeal are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(A), (C), (E).

Affirmed.

20100709

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