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State of New Jersey v. Brian Wyatt

February 22, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN WYATT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-11-0483.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2011

Before Judges Lisa and Alvarez.

Defendant, Brian Wyatt, appeals from the November 4, 2009 order denying his petition for post-conviction relief (PCR). Defendant was convicted of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1),(2), and other offenses. On June 14, 2004, Judge Paul J. Vichness, who had presided over the trial, sentenced defendant to an aggregate term of thirty years in prison without parole. In an unpublished opinion, we affirmed defendant's conviction, State v. Wyatt, No. A-0048-04 (App. Div. April 3, 2008), and the Supreme Court denied defendant's petition for certification. State v. Wyatt, 195 N.J. 524 (2008). In his PCR petition, defendant asserted ineffective assistance of his trial and appellate counsel. Based upon his review of the written submissions of both parties and oral argument, Judge Vichness denied defendant's petition without granting an evidentiary hearing. In the appellate brief filed by defendant's attorney, defendant argues:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL AND APPELLATE LEVELS.

A. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY.

B. APPELLATE COUNSEL WAS REMISS BY FAILING TO RAISE THE IMPROPER NATURE OF THE PROSECUTOR'S SUMMATION ON APPEAL.

In a supplemental pro se brief, defendant presents the following additional arguments:

POINT I

TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, HOLDING AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENDANT'S TRIAL ATTORNEY'S FAILURE TO EFFECTIVELY OBJECT TO THE TRIAL COURT'S ERRONEOUS APPLICATION OF INFORMER PRIVILEGE, UTTERLY DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND, ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, HOLDING AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENDANT'S TRIAL ATTORNEY'S FAILURE TO INVESTIGATE OBVIOUS SIGNIFICANT AVENUES OF DEFENSE, INCLUDING THE CALLING OF WITNESSES WHO WOULD HAVE DIRECTLY EXCULPATED DEFENDANT, UTTERLY DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, IN VIOLATION OF THE SIXTH, AND FOURTEENTH ...


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