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State v. Powell

Superior Court of New Jersey, Appellate Division

October 22, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
BASIYR POWELL, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-3571.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Parrillo and Harris.

PER CURIAM

Defendant Basiyr Powell appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

A jury convicted Powell of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). After merger, Powell was sentenced to an aggregate seventeen-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The charges arose from an armed robbery of a convenience store in East Orange. The State proffered the testimony of the victim, a police officer, and two eyewitnesses regarding Powell's commission of the crimes. Powell elected not to testify, and he presented no witnesses on his behalf.

On direct appeal, we affirmed the judgment of conviction but remanded for reconsideration of the sentence in light of the then-current applicable considerations required by State v. Natale, 184 N.J. 458 (2005), and its progeny. State v. Powell, No. A-2145-04 (App. Div. Sept. 19, 2006). The Supreme Court denied further review. State v. Powell, 189 N.J. 641 (2007).

After the Law Division resentenced Powell "with the same sentence as previously ordered, " we affirmed the sentence on an Excessive Sentencing Oral Argument calendar pursuant to Rule 2:9-11. State v. Powell, A-1923-07 (App. Div. February 4, 2009). The Supreme Court again denied certification. State v. Powell, 199 N.J. 541 (2009).

On March 22, 2011, Powell filed a petition for PCR, alleging that he was entitled to an evidentiary hearing in order to prove that he suffered the ineffective assistance of trial counsel. In support of his petition, Powell alleged generalized shortcomings of his attorney: "Trial counsel gave me misinformation and ill-advise [sic]. Counsel failed to file necessary motions, failed to argue all appropriate things at sentence, failed to consider all defenses and failed to investigate defenses that existed in the case. Counsel failed to ...


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