On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 01-11-1342, 01-11-1387, and 01-11-1388.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Baxter.
Harry Zamor was the subject of four indictments: 00-09-1121, charging absconding from parole; 01-11-1342, charging drug offenses; 01-11-1387, charging armed robbery and other crimes; and 01-11-1388, containing a certain persons charge. He was tried on all but the absconding indictment and found guilty, although the jury acquitted defendant of armed robbery in connection with indictment 01-11-1387, and instead found armed burglary.
Sentences were significant. He received a sentence of five years for third-degree absconding from parole, N.J.S.A. 2C:29-5b, consecutive to the sentence imposed on indictment 01-11-1387. On indictment 01-11-1342, defendant received an extended term sentence of seventeen years with seven years of parole ineligibility for second-degree possession of a controlled dangerous substance with the intent to distribute it within 500 feet of a public park, N.J.S.A. 2C:35-7.1. On indictment 01-11-1387, defendant received a sentence of five years in custody for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; ten years in custody with a five-year period of parole ineligibility for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; ten years in custody with an eighty-five percent period of parole ineligibility for second-degree armed burglary, N.J.S.A. 2C:18-2; and eighteen months in custody for fourth-degree assault, N.J.S.A. 2C:12-1b(4). He received a sentence of nine years in custody with a three-year period of parole ineligibility on indictment 01-11-1388, charging him with a second-degree crime as a person not to have weapons, N.J.S.A. 2C:39-7, consecutive to the sentences on indictments 01-11-1387 and 00-09-1112.
Defendant appealed his convictions pursuant to indictment 01-11-1387 (armed burglary), and we affirmed those convictions on appeal, but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Zamor, No. A-5061-04 (App. Div. May 7, 2007). On appeal, he raised the following issues as plain error: (1) the judge erroneously precluded the jury's consideration of the absence of fingerprints; (2) the prosecutor wrongfully utilized character assassination to prove his case; (3) prosecutorial misconduct occurred during summation; (4) the judge erred in failing to instruct the jury on the lesser-included offense of criminal trespass; (5) the prosecutor improperly shifted the burden of proof to him; (6) the court erred by failing to sanitize his convictions before they were admitted into evidence; (7) the judge erred in instructing the jury that it could infer a consciousness of guilt from flight; (8) merger of the conviction for unlawful possession of a weapon and for the "certain persons" offense should have occurred; and (9) the conviction for second-degree possession of a weapon for an unlawful purpose should have been merged with the substantive crime of fourth-degree assault. Defendant also argued that his sentence was excessive, the judge engaged in unlawful fact-finding, the aggravating and mitigating factors were not properly analyzed, and that the judge erred by imposing consecutive sentences. On remand, the judge imposed the same sentences, and the matter was not further appealed.
Defendant also appealed his conviction under indictment number 01-11-1387 for possession of cocaine, possession with the intent to distribute, and possession with the intent to distribute within 500 feet of public park. We affirmed defendant's convictions. State v. Zamor, No. A-1513-05 (App. Div. October 30, 2007). In that appeal, defendant challenged
(1) the judge's instruction on credibility; (2) the State's reliance on absentee witnesses to implicate defendant; (3) the State's proof of each element of the 500-foot charge; (4) prosecutorial misconduct; (5) the State's use of evidence of his silence at or near the time of his arrest; and (6) the excessive nature of his sentence.
Following the affirmance of defendant's convictions, he moved for post-conviction relief (PCR) on the armed burglary and drug convictions. Following the denial of his petition without an evidentiary hearing, defendant appealed.
On appeal, defendant raises the following issues through counsel:
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL AT HIS BURGLARY TRIAL REQUIRING REVERSAL. (Partially Raised Below.)
A. Trial counsel was deficient in failing to object to the prosecutor's inflammatory and prejudicial commentary to the jury.
B. Trial counsel was deficient in failing to make effective arguments for acquittal to the jury; appellate counsel failed to raise the issue on direct appeal.
C. Trial counsel failed to object to the court's instruction on the jury's consideration of the absence of ...