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State of New Jersey v. Anthony Mccall

February 28, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY MCCALL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-02-0237.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2011

Before Judges Messano and Yannotti.

Defendant Anthony McCall appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing.

Following a joint trial with his co-defendant, Jemel F. Powell, defendant was convicted by a jury of third-degree receiving stolen property, N.J.S.A. 2C:20-7(a); third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3; first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree theft of movable property, N.J.S.A. 2C:20-3(a); second-degree eluding, N.J.S.A. 2C:29-2(b); and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e). After appropriate mergers, the judge imposed the following consecutive sentences: five years for receiving stolen property; fifteen years with an 85% NERA*fn1 disqualifier for carjacking; fifteen years with an 85% NERA disqualifier for armed robbery; five years for theft; and ten years for eluding.

We affirmed defendant's convictions and sentence. State v. McCall, No. A-3604-03 (App. Div. Mar. 14, 2006) (slip op. at 25). Defendant's petition for certification was granted solely as to his sentence. State v. McCall, 187 N.J. 77, 77 (2006). The Court remanded the matter to review the sentence in light of its holding in State v. Natale, 184 N.J. 458 (2005). Ibid. The trial judge imposed the same sentence on remand, and we affirmed that sentence on appeal. State v. McCall, No. A-1021-06 (App. Div. July 24, 2007).

Defendant filed a pro se petition for PCR on February 8, 2007, in which he claimed trial counsel and appellate counsel provided ineffective assistance. In particular, defendant asserted that trial counsel failed to "adequately review discovery and prepare an intoxication defense"; failed "to investigate potential witnesses therein"; failed "to obtain a psych-examination"; failed "to acknowledge a false police report"; and both counsel failed "to acknowledge that [the] judge charged an unindicted charge during jury instructions." In his brief, PCR counsel also argued that: the indictment should have been dismissed because it was based upon hearsay testimony; the judge made improper remarks during the jury charge, thus denying defendant a fair trial; an evidentiary hearing was required; and the petition was not procedurally-barred.

Before the PCR judge, who was also the trial judge, counsel conceded that the alleged "improper remarks" were made by the judge to counsel outside of the presence of the jury. The judge further noted that defendant never moved before trial to dismiss the indictment, as required by Rule 3:10-2(c). Nonetheless, the judge concluded that defendant's claim was contrary to legal precedent. See, e.g., State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictment based largely or wholly on hearsay testimony.").

The judge ruled that defendant's remaining claims of ineffective assistance of trial and appellate counsel were "baseless," with "no evidence supporting any of the[] allegations." The judge therefore concluded that defendant failed to present a "prima facie" case of ineffective assistance and there was no need for an evidentiary hearing. He denied defendant's petition and this appeal followed.

Defendant raises the following points for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...


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