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State of New Jersey v. Eric Smith

February 14, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERIC SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1249.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2012 -

Before Judges Carchman and Fisher.

Defendant appeals the denial of his petition for post- conviction relief (PCR). We find no merit in any of his arguments and affirm.

Defendant was charged with and found guilty by a jury of: first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35- 10a(1). After appropriate mergers, the trial judge sentenced defendant to a twenty-eight-year prison term, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the carjacking conviction, and an eighteen-year prison term, with an eighty- five percent NERA parole disqualifier on the robbery conviction; these terms were ordered to be served concurrently. On the drug conviction, the judge imposed a consecutive five-year prison term.

In his direct appeal, defendant argued the following three

points:

I. TWO TESTIMONIAL REFERENCES BY THE STATE'S CHIEF WITNESS, DETECTIVE ANTHONY MARRA, THAT THE DEFENDANT WAS REPRESENTED BY THE "PUBLIC DEFENDER" IMPLIED THAT THE DEFENDANT WAS POOR, DENIED THE DEFENDANT [] HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL BECAUSE SUCH AN INFERENCE, ESPECIALLY WHEN THE DEFENDANT WAS CHARGED WITH ROBBERY AND CARJACKING, WAS GROSSLY PREJUDICIAL (Partially Raised Below).

II. THE COURT'S FAILURE TO DECLARE A MISTRIAL OR AT A MINIMUM TO VOIR DIRE THE JURY TO DETERMINE IF THE JURY WAS REASONABLY CERTAIN THAT FURTHER DELIBERATIONS WOULD NOT BE PRODUCTIVE, DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL (Not Raised Below).

III. THE DEFENDANT'S AGGREGATE SENTENCE OF

28 YEARS WITH 23.8 YEARS OF PAROLE INELIGIBILITY FOR CARJACKING IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

We rejected these arguments and affirmed for reasons expressed in an unpublished opinion. State v. Smith, No. A-5107-05 (App. Div. Oct. 19, 2007). The Supreme Court denied defendant's petition for certification. 193 N.J. 587 (2008). Defendant filed a timely PCR petition, arguing he was denied the effective assistance of counsel. Specifically, defendant alluded to the fact that when Detective Anthony Marra, during his testimony for the State, referred to defendant's attorney as "the [p]ublic [d]efender,"*fn1 defense counsel objected and the judge agreed to give a curative instruction. Certainly, counsel's objection was timely and appropriate, and the court properly recognized the need for a curative instruction.

Defendant argues, however, that his trial counsel was ineffective in not requesting a more appropriate instruction than that given by the trial judge. That is, the trial judge instructed the jury that [u]nder our system of law, everyone, of course, is entitled to good representation at a criminal trial and we, therefore, have the Office of the Public Defender, who represents many people. And in this case, [trial counsel] is, indeed, representing his client.[*fn2 ] In considering in the direct appeal whether ...


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