On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-05-0493.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Chambers.
Defendant Clarence Scott appeals from the denial of his first petition for post conviction relief (PCR). We affirm.
In January 2002, following a jury trial, defendant was convicted of the murder of Ronald Wimbush, N.J.S.A. 2C:11-3(a)(1) or (2); first degree robbery of Joseph Robinson, N.J.S.A. 2C:15-1; first degree attempted murder of Police Officer Salvatore Giuliana, N.J.S.A. 2C:11-3; second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); fourth degree resisting arrest, N.J.S.A. 2C:29-2(a); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f). After the verdict was announced, the jury deliberated again and convicted defendant of second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.
Judge Ronald Marmo imposed a life term with a thirty-five year parole disqualifier to be served consecutive to a sentence defendant was already serving; a consecutive twenty-year sentence with a NERA*fn1 parole disqualifier for the robbery conviction; and a twenty-year consecutive term with a NERA parole disqualifier for the attempted murder conviction. Defendant received lesser, concurrent sentences for the remaining convictions.
These are the relevant facts. On January 27, 1998, at approximately 11:30 p.m., Joseph Robinson and Alphonso Lee were leaving their apartment building in Paterson when they encountered a man with a gun. Robinson "figured it was a robbery so [he] just pulled [his] money out and [he] gave it to [the gunman]." The gunman then realized he actually knew Robinson and handed the money back. The three then walked around the building and encountered "a bunch of guys" who began taunting the gunman, calling him a "fag" and threatening to "f**k him up."
Robinson and Kelwanna Curry (who was standing near Wimbush) both testified that the gunman approached them, grabbed Wimbush, and then shot him as they were fleeing. The fired bullet struck and killed Ronald Wimbush. Curry, Robinson, and another witness, Raysun Belton, all described the shooter as having a distinctive limp or "funny walk", wearing dark clothing, a dark scarf over his face, and a dark hat.
Officer Frank Ferrigno spotted a suspect, later identified as defendant, matching the description of the gunman. He ordered defendant to stop, but defendant began running away. He had a limp. Ferrigno and his partner, Officer Salvatore Giuliana, chased him and caught him as he was attempting to climb over a fence. As they tried to arrest defendant, he began to kick, punch, and bite them. Defendant then reached into his pocket and aimed a gun at Giuliana, through the jacket, as they attempted to handcuff him. According to Ferrigno and Detective Robert Vogt, defendant threatened to "kill all you officers, you mother f***ers, I'll get you."
At trial, the State presented evidence that a shell casing from the scene of the shooting had been fired by the gun defendant pointed at Giuliana. The gun had five bullets lodged in its chamber.
We affirmed on direct appeal. State v. Scott, No. A-1732-03T4 (App. Div. February 2, 2006). Defendant filed a petition for certification. The Supreme Court granted defendant's petition for certification, "limited solely to defendant's sentence on Count 5 (robbery) and Count 8 (attempted murder) . . . and on those issues the matter is summarily remanded to the trial court for resentencing in light of State v. Natale, 184 N.J. 458 (2005)." State v. Scott, 187 N.J. 488 (2006).
Defendant filed pro se a first PCR petition. PCR counsel submitted a brief. Judge Marmo denied defendant's petition.
On appeal from the denial of his PCR petition, defendant contends:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...