STATE OF NEW JERSEY v. KENNETH GREEN

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. KENNETH GREEN, Defendant–Appellant.

DOCKET NO. A–4014–11T2

-- June 19, 2013

Before Judges Parrillo and Maven. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

Defendant Kenneth Green appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).  We affirm.

Tried by a jury in absentia, defendant was found guilty of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35–10(a)(1) (count one);  third-degree possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and N.J.S.A. 2C:35–5(b)(3) (count two);  third-degree unlawful possession of a handgun, N.J.S.A. 2C:39–5(b) (count three);  fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39–3(d) (count four);  and second-degree possession of a firearm while possessing a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:39–4.1(a) (count five).   The same jury, in a bifurcated trial on a separate indictment, also convicted defendant of one count of second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39–7(b).1

The facts underlying these convictions may be briefly stated.   On the afternoon of December 24, 2004, Montgomery Township police officers stopped the vehicle defendant was driving because of suspected illegal tinted windows.   The front-seat passenger was defendant's girlfriend, Karen Hart, to whom the car was registered.   Noticing a strong odor of burnt marijuana, the officer ordered defendant to exit the car and then conducted a search of his person, which uncovered clear plastic bags of cocaine, crack cocaine and marijuana.   Hart, the owner of the car, gave consent to search the vehicle, where in a locked glove box, police uncovered a loaded defaced firearm, several small baggies, an extra magazine or clip for the firearm, and a half-full box of ammunition.

Defendant was taken to police headquarters, where he waived his Miranda 2 rights and gave a statement admitting he purchased the drugs found on his person partly to sell and partly to use, and that he had been dealing drugs for a long time to support his habit.   He bought the gun for protection about nine months ago out of concern for his safety due to a dispute he had with another drug dealer, who had threatened to kill him after defendant had taken $3,000 worth of cocaine from him without paying for it.   Defendant also bought the two magazines, extra ammunition and trigger lock.   He further admitted that he had the only key for the glove box and always kept it locked.   He explained that Karen Hart had no idea that guns or drugs were part of his life and would have been very upset if she knew he kept a gun in the glove compartment of her car.   Hart was released by the police without charges.

Defendant did not have a permit to carry a handgun.   He was also previously convicted of a crime in 1993.

On the State's motion, defendant was found eligible for the imposition of a mandatory term of imprisonment pursuant to N.J.S.A. 2C:43–6(f).  After appropriate mergers, defendant was sentenced to an aggregate term of thirteen years with five years of parole ineligibility.

Defendant did not appeal his judgment of conviction, Rule 2:4–1.   Instead, on May 22, 2007, defendant filed a pro se application to amend his sentence due to infirmity, Rule 3:21–10(b)(2), which was denied.   On August 12, 2010, defendant filed a pro se motion to correct an illegal sentence and a verified PCR petition.   As to the latter, defendant, through counsel, raised the following issues:

I.  Defendant's Right to a Fair Trial was Violated by the Improper Comments of the Prosecutor During her Closing Statement to the Jury after the First Half of the Bifurcated Trial.

II. Defendant's Right to Fair Trial was Violated During the Second Half of the Bifurcated Trial by the Trial Court's Failure to Provide a Clear Limiting Instruction to the Jury Regarding the Prior Bad Acts and Other Crimes Evidence Introduced During the First Half of the Bifurcated Trial.

III. The Sentence Imposed on Defendant Should be Vacated as an Illegal Sentence Due to Improper Double Counting of Defendant's Prior Record as an Aggravating Factor After it was Used to Qualify Defendant for an Extended Term Sentence.

IV. Defendant's Petition for Post–Conviction Relief is Not Barred on Procedural Grounds under R. 3:22–4 as Defendant's PCR Claims May be Addressed on the Merits to Avoid a Fundamental Injustice.

Following argument, the PCR judge denied defendant's application as procedurally barred under Rule 3:22–4, reasoning:

A post-conviction relief application is not a substitute for appeal.   See, e.g. State v. Echols.   Defendant failed to file an appeal 45 days after his sentence, nor did he apply for a 30 day extension upon a showing of good cause and the absence of prejudice.   R. 2:4–4.   The Court does not believe that a fundamental injustice would result if the procedural bar was enforced.   The Defendant had an opportunity to file a direct appeal but chose not to do so because he believed it would be futile because he was dying.   Once the Defendant realized he was not dying he had an opportunity to file an appeal and again chose not to do so.

On appeal, defendant raises the same issues as he did below:

I.  DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED BECAUSE ENFORCEMENT OF THE BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE, AND THE CLAIMS ARE BASED ON CONSTITUTIONAL INFRINGEMENTS AND AN ILLEGAL SENTENCE.

II. THE PROSECUTOR'S IMPROPER COMMENTS DURING SUMMATION, THAT THE ITEMS FOUND AND SEIZED FROM HART'S CAR HAD TO BE DEFENDANT'S BECAUSE HART DID NOT TESTIFY, DEPRIVED DEFENDANT OF HIS CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR TRIAL.

III. THE TRIAL COURT'S FAILURE TO PROVIDE A CLEAR LIMITING INSTRUCTION REGARDING THE PRIOR BAD ACTS OF DEFENDANT, INTRODUCED IN THE FIRST PART OF THE BIFURCATED TRIAL, WAS FATAL TO DEFENDANT'S ABILITY TO HAVE A FAIR TRIAL.

IV. THE SENTENCE IMPOSED IS ILLEGAL AND MUST BE VACATED BECAUSE THE COURT IMPERMISSIBLY “DOUBLE–COUNTED” DEFENDANT'S PRIOR RECORD TO BOTH QUALIFY HIM FOR AN EXTENDED TERM AND AS AN AGGRAVATING FACTOR TO CALCULATE THE LENGTH OF THE SENTENCE.

V. DEFENDANT RE–ASSERTS ALL POINTS RAISED BELOW IN SUPPORT OF HIS PETITION FOR POST–CONVICTION RELIEF.

We agree with the PCR judge that defendant's instant application is procedurally barred under Rule 3:22–4(a), which provides:

Any ground for relief not raised in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding;  or

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice;  or

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.

The issues raised in Points II, III and IV were all capable of being resolved on direct appeal as they were not dependent on matters dehors the record, yet defendant never appealed his judgments of conviction and therefore may not raise these issues for the first time in his PCR petition.   R. 3:22–4.

Defendant nevertheless contends he is relieved of this procedural bar because enforcement of the bar would constitute a fundamental injustice.   We disagree.

“[A] fundamental injustice will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice for the individual defendant.”   State v. Martini, 187 N.J. 469, 481 (2006) (internal quotation marks and citation omitted), cert. denied, 549 U.S. 1223, 127 S.Ct. 1285, 167 L. Ed.2d 104 (2007).   In making this decision, the courts look to “whether the judicial system has provided the defendant with fair proceedings leading to a just outcome.”  Ibid. (citation omitted).   The burden is on the defendant, who must “allege specific facts, which, if believed, would demonstrate the likelihood of injustice by a preponderance of the evidence.”  State v. Mitchell, 126 N.J. 565, 589 (1992);  Martini, supra, 187 N.J. at 482.

Here, defendant has failed to establish a fundamental injustice as none of his challenges to the trial court rulings has substantive merit, much less demonstrates the deprivation of a fair trial.

In this regard, defendant first argues that the State shifted the burden of proof and violated his right to remain silent when the prosecutor stated “How do we know that the items in the car weren't Karen Hart's?   First, we know they weren't Karen Hart's because she is not here to testify — I'm sorry.”   This misspeak by the prosecutor was immediately remedied by a forceful curative instruction directing the jury to “delete” the prosecutor's comments.   The judge further reminded the jury that there is “no burden on the defense at all” as “the State has the burden to prove the elements of the offense.”   In any event, the alleged error was harmless beyond any reasonable doubt given the overwhelming proof of guilt and the fact that the defense never argued the contraband belonged to Hart. Thus, the prosecutor's brief, singular comment, which she herself interrupted, did not have the effect of shifting the burden of proof to defendant or improperly commenting on his silence.

Defendant next argues that the trial court failed to give a limiting instruction advising the jury during the second half of the bifurcated trial that it could not consider evidence of prior bad acts and other crimes introduced during the first half of trial, and therefore the evidence from the first trial could only have been used for the unlawful purpose of demonstrating defendant's propensity to commit crime.   We disagree, as the ‘possession of a weapon by a convicted felon’ charge was tried before the same jury sequentially, in accordance with State v. Ragland, 105 N.J. 189, 193 (1986), and the judge properly instructed the jury “you must disregard completely your prior verdict and consider anew the evidence that was previously admitted on the possession of a weapon.”   The judge also instructed the jury on more than one occasion that “[t]he defendant is entitled to the presumption of innocence.   Each and every material fact that makes up the crime ․ must be proven by the State beyond a reasonable doubt.”   Significantly, the judge did give a limiting instruction on the use of defendant's prior 1993 conviction, admitted to show that defendant was a convicted person prohibited from possessing a firearm under N.J.S.A. 2C:39–7(b).  As for any evidence of other bad acts admitted during the first half of the bifurcated trial, the court's further instruction to “disregard your prior verdict and consider anew” the evidence previously admitted on the possession of a weapon offense, purged any potential prejudice to defendant.

Lastly, defendant contends that the trial court's reliance on his prior criminal record as an aggravating factor after relying on the same record to impose an extended term sentence constituted a form of double-counting that resulted in an illegal sentence.   Once again we disagree.

At time of sentencing, defendant had three prior indictable convictions, three disorderly persons convictions, a violation of probation, and pending charges for possession and distribution.   Defendant's 1993 conviction for possession of CDS with intent to distribute was the basis of the extended term.   As such, the judge properly relied on defendant's remaining record and other prior convictions as an aggravating factor in determining defendant's base sentence.   Such reliance does not constitute impermissible double-counting.

We have considered defendant's remaining pro se arguments and conclude that none of them is of sufficient merit to warrant discussion in this opinion.   R. 2:11–3(e)(2).

Affirmed.

FOOTNOTES

1.  FN1. Subsequently, defendant pled guilty to one-count of third-degree bail jumping, N.J.S.A. 2C:29–7, also charged in a separate accusation.

2.  FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM

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