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State of New Jersey v. Mark Tompkins

March 4, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK TOMPKINS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-03-0893.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2011 - Decided

Before Judges Sabatino andAlvarez.

This is an appeal from the trial court's denial of post-conviction relief ("PCR") to defendant, Mark Tompkins.

After a jury trial in 2004, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b. He was sentenced to an extended custodial term of fifteen years, with a period of seven-and-a-half years of parole ineligibility. In an unpublished opinion on direct appeal, see State v. Tompkins, No. A-5006-04 (Dec. 8, 2006), we upheld defendant's conviction but remanded for resentencing in light of the Supreme Court's intervening opinion in State v. Pierce, 188 N.J. 155, 163 (2006). On remand, the trial court reimposed the same sentence. In the meantime, the Supreme Court denied certification. State v. Tompkins, 189 N.J. 649 (2007). Defendant then filed a PCR petition, which the trial court denied after considering the parties' written submissions and oral argument.

We incorporate by reference the factual chronology described in our opinion on direct appeal. Briefly stated, defendant was pulled over by a Newark police officer who had observed him making an illegal turn with his gray Pontiac near an entrance ramp to Route 78. Defendant stopped temporarily, but, as the officer got out of his squad car, he then drove away, at speeds estimated to be as high as eighty miles per hour. The officer gave chase, and then came upon defendant's Pontiac, which had just struck another vehicle head-on. As the officer arrived at the accident scene, defendant ran off through an open lot. He was apprehended nearby in a stairwell leading to the cellar of an abandoned building. The officer issued several motor vehicle summonses to defendant, and he was thereafter indicted on the eluding charge.

Before trial, defendant moved to preclude references by the State or its witnesses to the motor vehicle summonses. The trial court granted the motion to bar such references unless and until the summonses were produced. The record reflects that the summonses were, in fact, produced by the State to defendant's trial attorney before the arresting officer testified at trial and referred to the summonses.

Defense counsel argued to the jury that the arresting officer had fabricated his assertion about seeing defendant make an illegal turn. He argued that, in actuality, there was no vehicular chase and that the officer first encountered defendant at the scene of the collision. The jury evidently disbelieved defendant's theory and found him guilty.

In seeking a reversal of the PCR ruling, defendant's present counsel argues:

POINT I

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL DEPRIVED TOMPKINS OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

A. Tompkins Was Deprived of His Constitutional Right To Effective Assistance of Counsel Under the United States Constitution and the New Jersey Constitution.

B. Trial Counsel Failed to Object to the Testimony Concerning the Alleged Motor Vehicle ...


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