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State of New Jersey v. Tomango Simms

December 15, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TOMANGO SIMMS, A/K/A TOMANGO SIMS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-12-2430.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2011 -

Before Judges Axelrad and Sapp-Peterson.

Defendant, Tomango Simms, appeals from the June 11, 2010 order denying his petition for post-conviction relief (PCR).

We affirm.

In a five-count indictment, a jury charged defendant with first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count One); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (Count Two); second-degree aggravated arson, N.J.S.A. 2C:17-1a (Count Three); third-degree arson, N.J.S.A. 2C:17-1b (Count Four); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(8) (Count Five). The charges stemmed from the destruction, by fire, of the three-story Walter J. Conley Elks Lodge, located in Freehold Borough, during the early morning hours of July 20, 2003. The body of the lodge's caretaker, Elijah Jenkins, Jr., who also happened to be the grandfather of two of defendant's children, was found in the kitchen area of the second floor. Following a trial, the jury convicted defendant of Counts One, Four and Five, of manslaughter as a lesser-included offense of Count Two, and of arson as a lesser-included offense of Count Three. At sentencing, the court imposed an aggregate thirty-year custodial term with a thirty-year period of parole ineligibility.

In an unreported opinion, we affirmed defendant's conviction and sentence. State v. Sims, No. A-5104-05 (App. Div. Mar. 10, 2009). The Supreme Court denied defendant's petition for certification. State v. Sims, 199 N.J. 515 (2009). In June 2009, defendant timely filed a pro se PCR petition. On April 19, 2010, through assigned counsel, defendant filed an amended PCR petition. Following oral argument on June 11, 2010, the court orally denied defendant's petition, memorialized in an order of the same date. The present appeal followed.

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

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE SINCE HE DISCLOSED CONFIDENTIAL INFORMATION, DISPARAGED THE DEFENSE POSITION AND DEMANDED ADDITIONAL MONEY TO CONTINUE REPRESENTING THE DEFENDANT.

B. TRIAL COUNSEL WAS INEFFECTIVE SINCE HE FAILED TO USE EVIDENCE TO IMPEACH DEFENDANT'S MOTHER DURING CROSS-EXAMINATION.

C. TRIAL COUNSEL WAS INEFFECTIVE SINCE COUNSEL FAILED TO CALL DEFENDANT AS A WITNESS AT ...


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