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State v. Levine

Superior Court of New Jersey, Appellate Division

June 4, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
BENJAMIN LEVINE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2010 Decided November 23, 2010 Motion to reinstate appeal granted.

Resubmitted May 22, 2013

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 91-11-1817.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Grall and Simonelli.

PER CURIAM

Defendant Benjamin Levine appeals from the May 13, 2008 Law Division order, which denied his pro se motion for reconsideration of the July 13, 2007 order denying his pro se petition for post-conviction relief (PCR) grounded on ineffective assistance of counsel.[1] We affirm.

Following a jury trial, defendant, a doctor, was convicted of nine counts of fourth-degree criminal sexual contact with female patients, N.J.S.A. 2C:14-3b. The trial judge sentenced him to concurrent three-year terms of probation on each conviction with concurrent 180-day terms of incarceration in the Middlesex County jail.

Defendant appealed his conviction. Among other arguments, defendant contended he received ineffective assistance of counsel. We granted defendant's motion for a temporary remand on the ineffective assistance of counsel claim. After the remand hearing, we affirmed, finding "no adequate basis for concluding that defendant's [ineffective assistance of counsel] arguments have satisfied the second prong of the test . . . articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)[.]" State v. Levine, No. A-0463-96 (App. Div. Feb. 3, 2000) (slip op. at 6), certif. denied, 165 N.J. 137 (2000).

In March 2003, defendant filed a pro se PCR petition, again challenging his conviction and raising an ineffective assistance of counsel claim. In an oral opinion rendered on June 15, 2007, Judge Paley denied the petition. The judge found the petition was barred by Rule 3:22-4, because the issues raised in the petition should have been raised in the direct appeal, and Rule 3:22-5, because the issues were adjudicated in the prior appeal. Addressing the merits, the judge found that defendant failed to establish a constitutional violation or that defense counsel rendered ineffective assistance. This appeal followed.

On appeal, assigned counsel raises the following contentions:

POINT I - THE DEFENDANT WAS DENIED THE FULL AND FAIR EVIDENTIARY HEARING THAT WAS INITIALLY GRANTED BY THE PCR COURT.
POINT II – DEFENDANT'S ISSUES RAISED IN HIS PCR PETITION SHOULD BE CONSIDERED TO PREVENT A FUNDAMENTAL INJUSTICE AND BECAUSE THEY ARE OF CONSTITUTIONAL DIMENSION. [U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.]

In a pro se supplemental letter brief, defendant raises the following contentions:

POINT I – THE DEFENSE LAWYER RENDERED AN EGREGIOUS DEFENSE IGNORING FACTS OF INNOCENCE THAT IS CLEAR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II – JUDGE BERMAN ALLOWED A TAINTED JUROR, [], TO SIT, LETTING THE PROSECUTOR "TAMPER" WITH THE JURY TO "RESOLVE" THE EGREGIOUS DECISION
POINT III — THE PROSECUTOR MADE MULTIPLE DAMAGING REMARKS ABOUT DEFENDANT'S CHARACTER AND UNSUBSTANTIATED INFLAMMATORY STATEMENTS ATTRIBUTED TO DEFENDANT AND FALSELY CLAIMING DEFENDANT ASKED SEXUAL QUESTIONS
POINT IV — A SEARCH OF DEFENDANT'S OFFICE TO VERIFY THE TESTIMONY OF [A WITNESS] WAS UNABLE TO DO SO BUT [THE PROSECUTOR] WITHHELD THE RESULTS OF THAT EXCULPATORY SEARCH
POINT V — [THE TRIAL JUDGE'S] CHARGE TO THE JURY WAS BIASED FALSELY CALLING DEFENDANT A CRIMINAL LIAR AND FAILED TO CHARGE THE JURY WITH THE ALLEGED ACTS OF CONTACT FOR EACH COUNT SO THAT THE ALLEGED ACTS OF EACH WERE NOT UNANIMOUSLY DECIDED
POINT VI — SOME JUDGES IN MIDDLESEX COUNTY CONDUCT A TRIAL BY WORKING WITH PROSECUTORS TO GAIN A CONVICTION WHEN THE JUDGE BELIEVES A DEFENDANT IS GUILTY

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(2) We affirm substantially for the reasons expressed by Judge Paley in his comprehensive and well-reasoned oral opinion

Affirmed.


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