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State of New Jersey v. Omari Shabazz

October 5, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OMARI SHABAZZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-06-1944.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2011

Before Judges Ashrafi and Fasciale.

Defendant appeals from a December 16, 2009 order denying his third petition for post-conviction relief (PCR).*fn1 He contends that (1) his trial and appellate counsel were ineffective; and (2) the trial judge committed evidentiary errors and demonstrated a bias in favor of the State. Defendant did not raise certain available arguments on his direct appeal, and failed to establish a prima facie case of ineffective assistance of counsel. We affirm.

The facts giving rise to defendant's convictions, sixteen years ago, are set forth in our earlier unreported opinion. State v. Shabazz, No. A-5761-94 (App. Div. June 13, 1997), certif. denied, 151 N.J. 468 (1997). We now summarize the facts for this appeal.

An armed assailant robbed four retail stores at gunpoint between December 27, 1993 and January 6, 1994. The stores were within a three-block area, and the same modus operandi was employed in each case. Although the jury acquitted defendant of one of the robberies, the record disclosed that there existed "substantial evidence of guilt" on the remaining three robberies. Defendant was apprehended immediately after the last robbery, apparently while he was attempting to flee the scene of the crime.

At the conclusion of a jury trial, defendant was convicted of three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. After the appropriate mergers, the judge sentenced defendant to consecutive fifteen-year terms in prison with five years of parole ineligibility for the robbery convictions, and concurrent terms of five years in prison for the weapons-related convictions. The aggregate prison term is forty-five years with fifteen years without parole. We affirmed the convictions, State v. Shabazz, supra, slip op. at 1-2, and the Supreme Court denied certification on September 9, 1997, supra, 151 N.J. at 468.

Pro se defendant made the following points in his PCR petition:

POINT I

DEFENSE COUNSEL'S WAIVER OF DEFENDANT'S RIGHT TO BE PRESENT AT HEARING ON SEVERANCE MOTION AND [OMISSION] AT SEVERANCE [HEARING] OF DISCUSSION BETWEEN PARTIES AT PLEA BARGAIN HEARING OF ADDITIONAL ROBBERIES, DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, RIGHT TO BE PRESENT & A FAIR AND IMPARTIAL HEARING, IN VIOLATION OF THE 6TH AND 14TH, AMEND. CONST. U.S.C.

POINT II

TRIAL COURT'S CONDUCT [DURING] TRIAL DENIED DEFENDANT OF A FAIR AND IMPARTIAL TRIAL DEPRIVING HIM OF DUE PROCESS, IN VIOLATION OF THE 14TH AMEND. CONST. U.S.C.

POINT III

TRIAL COURT'S CONVERSATION WITH ASST. PROSECUTOR ON EVIDENCE DURING TRIAL WITHOUT THE PRESENCE OF DEFENSE COUNSEL, DENIED DEFENDANT HIS RIGHT TO COUNSEL AND DUE PROCESS, IN VIOLATION OF THE 6TH AND 14TH AMEND. CONST. U.S.C.

POINT IV

TRIAL COURT'S FAILURE TO DEFINE SPECIFIC DISPUTED FACT IN ISSUE FOR USE OF OTHER CRIME EVIDENCE AND FAILURE TO INSTRUCT JURY WITH SPECIFIC USE OF EVIDENCE WAS ERROR

POINT V

APPELLATE COUNSEL FAILURE TO RAISE THE FOREGOING ISSUES ON APPEAL DENIED PETITIONER EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS 6TH AND 14TH AMEND. CONST. U.S.C. THIS POINT INCORPORATES POINTS, I, II, III, & IV

In his brief, PCR counsel made the following additional points before the PCR judge, which we have renumbered to run consecutively to defendants petition:

POINT VI

THE TRIAL JUDGE COMMITTED PLAIN ERROR BY INJECTING BIAS INTO THE TRIAL IN FAVOR OF THE STATE SUCH THAT ...


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