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State v. Fleming

Superior Court of New Jersey, Appellate Division

October 10, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LARRY FLEMING, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0286.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Yannotti and Leone.

PER CURIAM.

Defendant Larry Fleming was convicted of first-degree murder, N.J.S.A. 2C:11-3a, first-degree felony murder, N.J.S.A. 2C:11-3a(3), and second-degree aggravated arson, N.J.S.A. 2C:17-1a(1). We affirmed his conviction on direct appeal. State v. Fleming, A-1217-04 (Mar. 14, 2007), certif. denied, 192 N.J. 69 (2007). Defendant now appeals the denial of his petition for post-conviction relief (PCR), claiming that he established a prima facie case that trial counsel was ineffective. We affirm.

I.

As we summarized on direct appeal, the pertinent evidence presented at trial was as follows:

On the evening of May 11, 2002, sometime after 10:15 p.m., firefighters responded to a blaze in an abandoned house at 340 Brunswick Avenue, in Trenton, New Jersey. Ellis McNeill (McNeill) was found dead in the second-floor hallway. . . .
Edwin Warren (Warren) was McNeill's friend. He testified that on the day of the fire, he went to the house at 340 Brunswick Avenue with Carmen Jones (Jones). Jones stayed there at times in a room in the rear of the second floor. McNeill also stayed with a woman called Bernadine in a room on the second floor of the house. Warren said that earlier that day, he had purchased beer, wine and some "rock cocaine." Warren and Jones went to Jones' room and "got high."
Warren testified that, late in the afternoon, defendant walked into Jones' room and asked whether Warren wanted to buy drugs. Warren had purchased drugs from defendant in the past. Warren told defendant that he did not have any money. Later, Warren went into the hallway and saw Jones running in his direction. She told him that the house was on fire. Warren saw a "big ball of black smoke and fire."
Jones testified that McNeill was a "good friend." She said that on May 11, 2002, she was in the house with Warren. During the day, Jones left the house about ten times to purchase cocaine. Jones said that drug dealers would come into the house and make sales. Around 8:00 p.m., Jones saw McNeill talking in his room with Bernadine. Jones left the house and went down to the bar and to a store. Jones saw defendant, who told her that she was a "cross-artist, " apparently because she had not spent any money with defendant or come to see him.
Jones returned to the house. Jones and Warren were in her room when defendant appeared. Defendant told Warren that he was a "cross-artist" and Warren had "crossed" him. Jones said that she did not purchase any drugs from defendant at this time. According to Jones, defendant did not have any drugs for sale at that time. Defendant left the room and said that if "anyone needed him, they knew where to find him."
Later, Jones went down the stairs and saw defendant with Curtis Hawkins (Hawkins) and Joseph McKinney (McKinney). Jones said that there was a light in defendant's hand "but it wasn't [a] flashlight." Jones also saw a red can with a yellow nozzle in defendant's left hand. Jones testified that ...

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