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State of New Jersey v. Thurman Thomas

March 4, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THURMAN THOMAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1224.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 29, 2010 - Decided Before Judges Lisa and Sabatino.

Defendant, Thurman Thomas, appeals the dismissal of his petition for post-conviction relief ("PCR"). For the reasons that follow, we affirm.

Defendant pled guilty in March 2004 to an amended charge of second-degree robbery, downgraded from first-degree robbery, N.J.S.A. 2C:15-1. The plea agreement was reached before the completion of jury selection. Consistent with the plea agreement, the trial court sentenced defendant to a custodial term of seven years, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The materials supplied to us on the appeal, including the parties' briefs and the presentence report,*fn1 describe the following pertinent facts. On March 26, 2003, the victim pulled his car into his driveway. Defendant walked up to the car, tapped on the window, and demanded money. He had one hand in his pocket and told the victim that he had just escaped from prison. During this encounter, defendant pulled up his shirt, revealing a scar on his stomach. The victim persuaded defendant to let him go into his house and retrieve some cash. The victim's wife then emerged from the house. The victim then ran into the house, pushing his wife inside and locking the door behind him. Defendant remained outside for awhile, shouting at the victim and imploring him to come out with the money. The victim then called the police and described the assailant, noting in particular the scar. Defendant left the property.

The police soon found defendant in the neighborhood and apprehended him. The police then brought the victim over to defendant. The victim positively identified defendant as the man who had accosted him in his driveway.

Prior to trial, defendant's counsel challenged the admissibility of the victim's identification. The challenge prompted the trial court to schedule a Wade*fn2 hearing on admissibility. The Wade hearing was cancelled after defendant pled guilty.

Defendant appealed his sentence, claiming that it was excessive. We affirmed the sentence, in an order dated December 14, 2005. Certification was denied. State v. Thomas, 186 N.J. 365 (2006).

Defendant filed his first PCR application in June 2007. He subsequently withdrew that application. He filed a second PCR application in February 2008. The application, as amplified with the assistance of counsel, alleged that defendant's guilty

plea must be vacated because the factual basis for the plea presented to the trial court was inadequate. Defendant further contended that his trial attorney and his counsel on direct appeal were ineffective. Among other things, he maintained that his trial attorney should have insisted upon the Wade hearing being completed before the plea agreement was made. Defendant also pressed several additional arguments in his pro se brief to the trial court.

After hearing oral argument, the judge assigned to the PCR matter*fn3 dismissed defendant's application on both procedural and substantive grounds. This appeal followed.

Defendant's appellate brief raises the ...


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