Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State of New Jersey v. Kevin Mc Cray

July 12, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN MC CRAY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-12-4087.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2011

Before Judges Cuff, Sapp-Peterson and Simonelli.

Appellant filed a pro se supplemental brief and a pro se reply brief.*fn1

Defendant appeals from the trial court order denying his petition for post-conviction relief (PCR) without first conducting an evidentiary hearing.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST[-]CONVICTION RELIEF.

B. SINCE THE DEFENDANT'S ONLY VIABLE DEFENSES TO THE VARIOUS CHARGES REQUIRED HIS TRIAL TESTIMONY AS WELL AS THAT OF ONE OR BOTH CO-DEFENDANTS, HE PRESENTED A PRIMA FACE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AT LEAST WARRANTING AN EVIDENTIARY HEARING IN LIGHT OF TRIAL COUNSEL'S FAILURE TO CALL THE DEFENDANT OR EITHER CO-DEFENDANT AS WITNESSES AT TRIAL.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-5.

In his pro se supplemental brief, defendant raises the following point for our consideration:

POINT [I]

PROSECUTORIAL MISCONDUCT, INEFFECTIVE ASSISTANCE OF COUNSEL AND TRIAL JUDGE ERROR VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS WHEN THE PROSECUTOR MADE MISREPRESENTATION OF THE CONTENT OF PLEA ALLOCUTIONS OF CO-DEFENDANT[]S ON THE RECORD TO THE JURORS AT TRIAL CONTRARY TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONST[.,] ART[.] [I], [¶] 10 OF THE [N.J. CONST.] OF 1947. TRIAL COUNSEL'S FAILURE TO CALL THE CO-DEFENDANT[]S KENYA TUCKER AND [O.B.]*fn2 AS DEFENSE WITNESSES DEPRIVED DEFENDANT OF THE DEFENSE OF RECKLESSNESS AS TO THE DEGREE OF CULPABILITY, WHICH WOULD HAVE NEGATED FELONY MURDER AS A MATTER OF LAW AS [O.B.] WAS THE "PRINCIPLE" WHO SHOT THE VICTIM IN THE HOMICIDE. THE DEFENDANT WAS DEPRIVED OF ESSENTIAL FACTS MATERIAL TO HIS DEFE[N]SE WHICH DEPRIVED HIM [OF] A FAIR TRIAL BY AN IMPARTIAL JURY. THE CO-DEFENDANT[]S COULD NOT ASSERT FIFTH AMENDMENT RIGHTS AS THEY WERE ALREADY SENTENCED AND THE COURT ACCEPTED THEIR FACTUAL BASIS PURSUA[N]T TO R[ULE] 3:9-2. THE DEFENDANT WAS LEFT TO A TRIAL INCONSISTENT WITH THE STATUTES SET FORTH BY THE N.J. LEGISLATURE, AS THE ALLEGED CONSPIRACY WAS BASED ON ROBBERY AND DEFENDA[N]T'S ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.