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State v. Dow

Superior Court of New Jersey, Appellate Division

August 1, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JOHN DOW, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 93-07-1182.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Fasciale and Maven.

PER CURIAM

Defendant John Dow appeals from the denial of his third petition for post-conviction relief (PCR). We affirm.

In December 1994, a jury convicted defendant of capital murder, felony murder, robbery, burglary, aggravated arson, and aggravated assault. He was sentenced January 20, 1995, to serve an aggregate term of seventy-five years in state prison with a thirty year period of parole ineligibility. The convictions and sentence were affirmed on appeal. State v. Dow, No. A-5331-94 (App. Div. Dec. 3, 1998).

Defendant filed this amended third petition for PCR[1] on December 28, 2010, almost sixteen years following entry of the judgment of conviction, contending that trial, appellate and PCR counsel rendered ineffective assistance of counsel. He claimed that counsel failed to object to: (1) the admission of prior "bad acts" evidence under N.J.R.E. 404(b); (2) hearsay statements of certain witnesses; and (3) cross examination of defendant's expert regarding defendant's propensity for violence.

The Honorable Ronald L. Reisner, J.S.C., heard oral argument on July 29, 2011, and issued a written opinion dismissing the petition for several reasons. The judge ruled that the petition was time barred, R. 3:22-12, having been filed after the statutorily prescribed five year period, and was not factually supported with a showing of excusable neglect. Relying on State v. Mitchell, 126 N.J. 565, 584 (1992), the judge found that defendant failed to demonstrate the existence of a true injustice to warrant relaxation of Rule 3:22-4. On the merits, the judge determined that defendant's asserted claims of counsel error either could have been raised or had been addressed on direct appeal and thus, cannot be litigated anew in this petition. Ultimately, the judge found that defendant failed to satisfy the two prong Strickland/Fritz[2] standard as applied to the performance of his appellate and PCR counsel. This appeal followed.

On appeal, defendant raises the following claims:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial Counsel Failed to Raise Objections to Testimony Which Violated the Rule Against Hearsay and the Confrontation Clause of the United ...

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