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State of New Jersey v. David Minor

November 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID MINOR, A/K/A DAVID SMITH, AARON WHEELER, ARRON WHELLER,TYRONE WHEELER, TYRONE WILLER, ROBERT HENDERSON, DAVID MILLER AND JAMES TATE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-05-1845.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2012

Before Judges Reisner and Yannotti.

Defendant David Minor appeals from a December 16, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

I

In 2004, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and associated weapons offenses, and sentenced to twenty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On defendant's direct appeal, he raised the following issues:

POINT I - THE TRIAL COURT'S FAILURE TO CONDUCT A GILMORE HEARING DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 5, 9 & 10.

POINT II - THE PROSECUTOR MISSTATED THE LAW AND HER BURDEN OF PROOF AND HER IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9 & 10. (Not Raised Below.)

POINT III - THE POLICE FAILED TO FOLLOW ESTABLISHED ATTORNEY GENERAL PROTOCOL IN CONDUCTING THE PHOTO ARRAY. (Not Raised Below.)

A. FAILURE TO CONDUCT A WADE HEARING WAS NOT HARMLESS.

B. BRANCH AND BANKSTON WERE NOT FOLLOWED AND THE RESULTANT HEARSAY DEPRIVED THE DEFENDANT OF A RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. (Not Raised Below.)

C. CONCLUSION: THE TAINTED PHOTO ARRAY VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT IV - THE DEFENDANT'S SENTENCE OF TWENTY YEARS WITH N.E.R.A. PAROLE INELIGIBILITY, VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. U.S. ...


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