Opinion
DOCKET NO. A-3661-13T1
04-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES L. RANDALL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-09-1040. Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Abbasi, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant James Randall appeals from a December 19, 2013 order denying his petition for post-conviction relief (PCR). Following trial, a jury convicted defendant of second-degree possession of a controlled dangerous substance (cocaine) with intent to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-7.1(a) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count three). The trial judge imposed sentence. On the State's motion, the judge found defendant was a habitual offender. After merger, she sentenced defendant to a sixteen-year period of incarceration subject to an eight-year period of parole ineligibility. Defendant's conviction and sentence were affirmed on appeal in an unpublished opinion and certification was denied. State v. Randall, No. A-5237-09 (App. Div. Oct. 6, 2011) (slip op. at 3, 41), certif. denied, 24 N.J. 607 (2012).
Defendant's petition for PCR argued counsel was ineffective for failing to file a motion to suppress and failing to object to prosecutor comments inciting the jury's passion by uttering a "call to arms."
Before the trial court, defendant also argued trial counsel was ineffective because of a lack of communication, a lack of investigation, and a lack of preparation by trial counsel. He does not appeal from the trial judge's denial of those grounds. --------
Judge Jeanne T. Covert, who also served as the trial judge, reviewed defendant's PCR petition. Judge Covert declined defendant's request for an evidentiary hearing and denied PCR.
She found defendant's assertion trial counsel should have moved to suppress was procedurally barred because it did not lie outside the trial record and should have been presented on direct appeal. R. 3:22-4. Evaluating the merits, Judge Covert concluded no basis to suppress the evidence was presented and counsel was not ineffective for not filing such a motion. Police observed what they reasonably believed was a hand-to-hand drug sale. When directed to raise his hands, defendant held in one hand a bag of what was determined to be cocaine. As to the identified egregious remarks, including the purported "call to arms" regarding the "war on drugs," these issues were previously raised and denied on appeal. Randall, supra, (slip op. at 8-20). Judge Covert properly found defendant could not renew these arguments on PCR. R. 3:22-5.
On appeal, defendant argues:
THE PCR COURT ERRED IN DENYING [DEFENDANT] AN EVIDENTIARY HEARING, EVEN THOUGH HE DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
[A.] Trial Counsel Was Ineffective When He Failed To File A Motion To Suppress The Evidence Illegally Obtained From [Defendant]'s Vehicle.
[B.] The PCR Court Erred By Denying [Defendant] An Evidentiary Hearing, Even Though [Defendant] Successfully Demonstrated That Trial Counsel Was Ineffective In Failing To Object To Comments Made By The Prosecutor To The Jury That Were Prejudicial
To [Defendant] And Prevented [Defendant] From Receiving A Fair Trial.
Following our review of these issues, in light of the record and applicable law, we affirm substantially for the reasons stated by Judge Covert in her thorough twenty-one page written opinion, filed on December 19, 2013. We find no basis to interfere with the order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION