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State of New Jersey v. Lester Denmon

December 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LESTER DENMON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 91-10-1034 and 95-09-1155.

Per curiam.

Argued: December 1, 2010 - Decided: Before Judges Cuff and Fasciale.

Appellant filed pro se supplemental briefs.

Defendant appeals from the denial of his petition for post-conviction relief (PCR) on two indictments. In I-91-10-0134, defendant argues that his trial counsel was ineffective because he (1) ignored his desire to testify; (2) failed to call exculpatory witnesses to testify; (3) failed to request a Cromedy*fn1 charge; and (4) requested lesser included offenses unnecessarily. He also argues that his right to a speedy trial was violated, and raises a violation of the Interstate Agreement on Detainers (IAD)*fn2 . In I-95-09-1155, defendant contends that his trial counsel failed to consult with him prior to trial. We affirm.

Defendant's first indictment (I-91-10-0134) involved a robbery of a victim while she parked her car. She turned the engine off, defendant approached the passenger side of the car, and stated "open the door or I'll smash it." The victim complied, defendant grabbed her handbag, and threatened her. She observed him leave in an "old red, beat-up car."

She reported the robbery to the police and described defendant as a black male, in his early twenties, about 5'10", with short hair, a red shirt, shorts and white sneakers. Police then stopped defendant in a red car and the victim identified him as the robber. The victim's belongings were found in defendant's car. Defendant did not testify at trial.

The jury convicted defendant of various offenses, including robbery, burglary and theft. The judge sentenced defendant to an aggregate nine years in state prison. In an unreported opinion, we affirmed the burglary and theft convictions, but reversed the robbery conviction. State v. Denmon, No. A-5898-91 (App. Div. June 24, 1994). On retrial, a jury found defendant guilty of robbery, and the judge sentenced him to ten years in state prison with four years of parole ineligibility. We affirmed the conviction, State v. Denmon, No. A-7420-97 (App. Div. December 6, 2000), and the Supreme Court denied certification. 168 N.J. 295 (2001).

Defendant's second indictment (I-95-09-1155) involved credit card theft from two victims and related offenses. Both victims stated they never authorized defendant to use their credit cards. Defendant did not testify at trial.

The jury convicted defendant of various offenses, including fraudulent use of a credit card, credit card theft, attempted theft by deception, and hindering apprehension. The judge sentenced defendant to an aggregate six and one-half years in state prison with two years of parole ineligibility. In an unreported opinion we affirmed the conviction for hindering apprehension, but reversed the other convictions. State v. Denmon, No. A-4306-98 (App. Div. December 18, 2000). The Supreme Court denied certification. 168 N.J. 295 (2001).

Defendant then filed two petitions for PCR.*fn3 In separate lengthy written opinions dated October 27, 2009, the PCR judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel and denied both petitions without conducting an evidentiary hearing. On September 3, 2009 defendant filed an appeal from the denial of his petitions. On September 24, 2009, we temporarily remanded the matter for the PCR judge to address defendant's speedy trial and IAD arguments. On April 7, 2010, the PCR judge issued a supplemental written opinion rejecting the speedy trial and IAD arguments.

On appeal, defendant raises the following points:

POINT I

THESE MATTERS MUST BE REMANDED FOR EVIDENTIARY HEARINGS BECAUSE DEFENDANT ESTABLISHED PRIMA FACIE CASES OF ...


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