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State v. Brown

October 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN E. BROWN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-07-1482.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2010

Before Judges Wefing and Koblitz.

Defendant appeals from a trial court order denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

A

jury convicted Brown of second degree robbery, N.J.S.A. 2C:15-1a(1). The court granted the state's somewhat delayed extended term motion and sentenced defendant to a fifteen-year term with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction and sentence and we affirmed. State v. Brown, No. A-3854-04T4 (App. Div. Oct. 24, 2006). The Supreme Court denied defendant's petition for certification. 189 N.J. 647 (2007). Defendant filed a timely PCR. Defendant now appeals from the trial court's order denying his petition without an evidentiary hearing.

Defendant was convicted of trying to pick David Smith's pocket while Smith was gambling at the Sands Casino in Atlantic City. When Smith felt defendant's hand in his pocket near his money clip, Smith confronted defendant and called security. Defendant jumped up and twisted the arm of Dorothy Fazeli, Smith's female companion. A Sands security supervisor spotted defendant before defendant ran out of the Sands. Defendant was apprehended at the Claridge Hotel, escaped again, and was finally arrested back at the Sands, where he had left his jacket. Defendant told the police that he did not take anything and had been assaulted by Fazeli. Neither victim lost any money or other possessions. Fazeli's hurt arm was treated at the scene. Casino security did not preserve the security videotape of the incident scene, as they could not identify individuals or make out what happened. Defendant did not testify.

On appeal, defendant raises the following arguments:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to investigate or consult with an expert concerning the destruction of the surveillance tape.

B. Trial counsel failed to request alternate relief to remedy ...


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