State v. White, 012021 NJSUP, A-0188-19T4

Docket NºA-0188-19T4
Opinion JudgePER CURIAM
Party NameSTATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN WHITE, Defendant-Appellant.
AttorneyJoseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Judge PanelBefore Judges Fasciale and Mayer.
Case DateJanuary 20, 2021
CourtSuperior Court of New Jersey

STATE OF NEW JERSEY, Plaintiff-Respondent,

v.

JOHN WHITE, Defendant-Appellant.

No. A-0188-19T4

Superior Court of New Jersey, Appellate Division

January 20, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2021

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-12-1811.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

Before Judges Fasciale and Mayer.

PER CURIAM

Defendant John White appeals from a July 22, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

We incorporate the facts from our opinion in State v. White, No. A-5421-15 (App. Div. March 22, 2018) (White I). In White I, defendant appealed his convictions for weapons and drug charges, raising the following arguments for the first time on appeal: "the prosecutor posed a hypothetical question designed to elicit an opinion that defendant possessed drugs with the intent to distribute"; the State's expert improperly testified on the ultimate issue thereby invading the jury's factfinding role; the State's fact evidence was improperly bolstered by its expert witness; "the prosecutor committed misconduct in vouching for the credibility of a witness"; the State failed to provide a proper foundation for the text message from defendant to a co-defendant; the trial court erred in admitting co-defendant's testimony regarding the text message; the trial court failed to provide a limiting instruction to the jury related to the text message; and the trial court erred in failing to instruct the jury using the model jury charge concerning statements of defendant.1 White I at 5-6.

Because each of defendant's contentions in White I were raised for the first time on appeal, we reviewed his arguments for plain error in accordance with Rule 2:10-2. Id. at 6. In White I, we affirmed the convictions, finding defendant failed to show plain error as to any of the substantive issues raised on appeal. Id. at 14. The New Jersey Supreme Court denied defendant's petition for certification and motion for summary disposition. State v. White, 233 N.J. 608 (2018).

In September 2018, defendant filed a pro se PCR petition. After being assigned counsel, defendant filed an amended petition, 2 asserting his trial attorney "failed to object to the prosecutor's summation, failed to request a hearing to determine the admissibility of various alleged statements and failed to request a jury charge" regarding defendant's alleged statements. In addition, he argued trial counsel "should have been more prepared at trial and failed to recognize the importance of these objections during trial."

The PCR judge heard argument on July 22, 2019. The judge rendered an oral decision, concluding defendant's PCR issues were raised and adjudicated on the merits in his direct appeal. Based on White I, the PCR judge determined any inappropriate comments regarding the credibility of a testifying co-defendant made by the prosecution during summation "were not so egregious that it deprived defendant of a fair trial" and found "[t]here was sufficient evidence in the record for the jury to ultimately decide the defendant owned a gun." In rejecting defendant's argument related to the failure to provide a Hampton3 charge, relying on White I, the PCR judge found the jury instructions "were sufficient because they still captured the same information that a Hampton charge would have conveyed." Having...

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