NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1592-05T41592-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOUGLAS PARSONS,

Defendant-Appellant.

________________________________________________________________

Submitted January 9, 2007 - Decided

Before Judges Lisa and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 2802-9-84.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

Douglas Parsons, appellant pro se, filed a supplemental brief.

PER CURIAM

Defendant, Douglas Parsons, appeals from the Law Division's September 30, 2005 order denying defendant's second petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant was found guilty on June 17, 1985, of ten of the eleven counts on Essex County Indictment Number 2802-9-84. On count four, defendant was found guilty of theft, the lesser included offense of robbery. The ten counts on which the jury found defendant guilty were third-degree theft, contrary to N.J.S.A. 2C:20-3(a) (count one); third-degree theft by receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count two); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count three); first-degree murder (capital murder), contrary to N.J.S.A. 2C:11-3(a)(1) or (2) (count five); fourth-degree hindering one's own apprehension, contrary to N.J.S.A. 2C:29-3(b)(2) (count six); third-degree unlawful possession of a sawed-off shotgun, contrary to N.J.S.A. 2C:39-3(b) (count seven); second-degree possession of a sawed-off shotgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count eight); and three counts of second-degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (counts nine, ten and eleven).

The jury, thereafter, heard evidence at the penalty phase of defendant's conviction for capital murder. On June 26, 1985, the jury returned a special verdict finding that the one aggravating factor it found was outweighed by the three mitigating factors it found. On July 31, 1985, defendant was sentenced on his murder conviction to life imprisonment with a thirty year parole ineligibility period. Defendant's aggregate sentence on all charges was life imprisonment with consecutive terms of imprisonment of forty years and six months and a fifty year parole ineligibility period.

On January 14, 1988, this court, in an unpublished opinion, affirmed defendant's conviction but remanded for re-sentencing in light of the Supreme Court's then recently decided decision in State v. Yarbough, 100 N.J. 627 (1985), which established guidelines for consecutive sentences. State v. Parsons, No. A-83-85T4. On May 10, 1988, the Supreme Court denied defendant's petition for certification. State v. Parsons, 111 N.J. 567 (1988).

On March 15, 1988, defendant was resentenced to an aggregate term of life imprisonment plus a consecutive sentence of twenty-five years and six months and a total parole ineligibility period of forty years. On October 11, 1988, an Excess Sentencing Panel of this court heard the appeal of defendant's sentence. The panel modified defendant's sentence by running counts seven and nine concurrent with count three.

On August 1, 1991, defendant filed pro se his first petition for PCR. Defendant's petition contended that his sentence was manifestly excessive and that certain counts were legally required to be merged. The court denied defendant's PCR petition on November 18, 1991. Defendant's appeal of the denial of his first PCR petition was heard by an Excessive Sentencing Panel of this court on January 25, 1993, since the issues on appeal related solely to the sentence imposed. The panel affirmed defendant's sentence. On May 11, 1993, the Supreme Court denied defendant's petition for certification. State v. Parsons, 133 N.J. 443 (1993).

On June 8, 1994, defendant filed a second pro se petition for PCR. By letter dated November 1, 1994, defendant's petition was denied after oral argument but without an evidentiary hearing. Defendant appealed to this court. In an unpublished opinion dated July 13, 1998, we vacated the order denying defendant's petition and remanded the matter for briefing and a hearing. State v. Parsons, No. A-3242-96T4. Following oral argument on September 30, 2005, Judge Vena denied defendant's second petition for PCR in a comprehensive and well-reasoned oral opinion. This appeal followed.

The factual evidence presented to the jury, which we repeat here verbatim, is recited in our January 14, 1988 opinion on direct appeal.

On September 16, 1984 James Sloane parked his car, a 1973 four-door, blue Chevrolet on the side of the road with the motor running to use a pay phone. While he was talking on the telephone, a black male, later identified as defendant, jumped into the car and drove off. The theft was immediately reported to the police.

Later that day, Victor Nelson drove to a gas station at Tremont and Shepherd Avenues in East Orange. While he was standing near the rear of his car counting out the money to pay for the gas, a car without lights came into the station. Nelson heard someone say, "Don't move. Give me your money." As Nelson turned around he saw a male, later identified as [defendant], pointing a gun at him. The gas station attendant, John Marshall, saw the gun, ran across the street, and called the police. Defendant fired a shotgun into the air and another man took Nelson's money. The two men then drove off on Tremont Avenue.

On the evening of September 16, 1984 [defendant] slept at a friend's house and then left early the next morning, taking his shotgun. As he was walking along Central Avenue in Newark, [defendant] saw Dawn Pryor, an acquaintance, walking towards the cleaners. He offered to drive her to downtown Newark where she intended to catch a bus to see her mother in Caldwell. When they arrived at the bus station, [defendant] told her he would drive her to Caldwell.

[Defendant] then went into the Shell gas station on 12th Street and Bloomfield Avenue in Newark. DeFilippo, the gas station attendant, testified that at about 9:45 a.m. a man, whom he later identified as [defendant], drove into the gas station in a blue Chevrolet and asked for "$12 worth of gas" and then "$3 more." While DeFilippo pumped the gas [defendant] "kept getting in and out of the car." [Defendant] then asked DeFilippo to check the transmission fluid. When DeFilippo opened the hood of the car, [defendant] pushed him and drove off without paying for the gas. DeFilippo testified that he had to jump out of [defendant's] way to avoid being run over. On his way to Caldwell, [defendant] realized that he was missing his wallet and thought that he had lost it at the gas station. [Defendant] and Pryor dropped clothes off for her mother in Caldwell and then drove back to Newark on I-280.

Officer Daniel Smith of the Essex County Police Department was patrolling on I-280 eastbound. He observed [defendant] in the 1973 Chevrolet stolen from James Sloane the day before. Smith relayed the license plate number to headquarters and requested a check on the ownership of the car he was about to stop. He was informed that the car was not registered but that it had not been stolen. Smith then advised the dispatcher that he was making a motor vehicle stop of the car in question.

When Smith activated the patrol car siren, [defendant] turned his head and observed Smith talking on the police radio. [Defendant] pulled the car over onto the right shoulder of the road. As Smith approached the car, [defendant] placed his sawed-off shotgun under his jacket. He told Pryor that the sawed-off shotgun was not loaded and he had no intention of using it. Smith approached [defendant's] car on the driver's side. As [defendant] asked Smith what the problem was, [defendant] raised the shotgun and killed Smith with a single shot to the head. [Defendant] then threw the gun on the seat and drove off.

This incident was witnessed by other travelers on the highway. Edward Sanford, a corrections officer, was a passenger in a truck traveling eastbound on I-280, driven by Jerry DiGiovanni. Sanford witnessed Smith walk up to [defendant's] car which was parked on the shoulder of the road, and saw [defendant] swing a shotgun out the window, hear a loud noise and then observed the officer's head "explode." DiGiovanni immediately slowed down and pulled into the right hand lane. Sanford drew his weapon, yelled "Police," and fired three shots into the front tires as the Chevrolet appeared to speed up. The shots caused the Chevrolet to veer from the paved portion of the highway, strike a car, veer back onto the road, and hit two or three more cars before coming to a rest against the center divider.

Another witness, Marvin Millstein, was driving a red pick-up truck on westbound I-280 when he observed the Chevrolet spin out of control in the eastbound lane and come to a stop at the concrete divider. Millstein pulled his car onto the left shoulder and ran, too late, to assist Smith. He used the victim's police radio to request assistance.

Another witness, Barry Wasserman, was traveling eastbound on I-280 when he heard the screeching of tires and saw a car drive away quickly from the shoulder where a police car was stopped with its lights on. Wasserman, an emergency medical technician, attempted to aid Smith. He observed that the top part of Smith's head was missing and that there was a profuse amount of blood on the ground.

When [defendant's] car came to a stop against the median, he got out of the car, crossed the road and ran up through the weeds. Sanford waived down another officer who was on his way to assist Smith when he received the second radio dispatch that an officer had been shot on I-280. Sanford reported that he had seen the suspect run away from the scene and a description of [defendant] was broadcast.

Detectives Moran and Reeves of the East Orange Police Department began a search for the suspect in the murder. They were given information that the suspect was running in the direction of Elmwood and Shepherd Avenues, and proceeded to that area. They stopped [defendant] on the street, noticed that he had a very rapid heart beat and asked him to turn over his hands. The detectives asked [defendant] his name and he gave them the name Munford which was a family name. He offered it so they would not be able to learn he had an arrest record in New York. When [defendant] tried to elude Moran's inspection of his hands, Reeves decided to bring [defendant] to the police station for an interview. As they handcuffed [defendant], he blurted out "I panicked, I just shot him." The officers then read [defendant] his Miranda rights and took him to the East Orange Police station. Enroute to the police station, [defendant] repeated his admission and Moran repeated the Miranda warnings.

When [defendant] was taken to the police station he was placed in an interrogation room. Detective Thomas Gilsenan of the Essex County Prosecutor's Office informed [defendant] that the officer was dead and that he would be charged with homicide. He read [defendant] his Miranda rights and had him sign and date the standard Miranda form. Gilsenan first obtained an oral statement and then a full written statement from [defendant] in which he admitted the murder of Officer Smith, the robbery of Victor Nelson, the theft from Carlos DiFilippo, and the theft of the car. With respect to the murder, [defendant] stated:

While I war riding on 280 I saw this cop car in back of me. I was looking in the mirror.

I saw him talking on the radio like he was calling a back up. Then he put his red lights on and he pulled me over.

The officer got out of the car and walked up to the car that I was in. He stopped me near the rear on an angle from the driver's side. He then asked me for my license and registration.

I said: what is the problem, officer?

At that point I reached down for the shotgun under the seat; pointed it at him and fired at him.

The officer fell to the ground. I think it hit him right in the face with the blast.

I then took off in the car. I then saw a jeep pull up along side of me and they were shooting at me.

I then stopped the car and jumped out and ran up the hill on 280 and into the bushes.

While [defendant] statement was being taken, DeFilippo walked past the interrogation room and identified [defendant] as the person who had robbed him at the gas station earlier that day.

Defendant's counsel presents the following arguments for our consideration:

POINT I.

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.

POINT II.

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL'S FAILURE TO RAISE A MERITORIOUS ISSUE IN THE MOTION TO SUPPRESS DEFENDANT'S STATEMENTS CONSTITUTED INEFFECTIVENESS OF COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO RAISE AN INTOXICATION DEFENSE CONSTITUTED INEFFECTIVENESS OF COUNSEL.

C. TRIAL COUNSEL'S FAILURE TO REQUEST LESSER INCLUDED OFFENSES CONSTITUTED INEFFECTIVENESS OF COUNSEL.

POINT III.

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV.

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

POINT V.

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.

Defendant, pro se, presents the following additional arguments for our consideration:

POINT I.

DAWN PRYOR'S INCRIMINATING STATEMENT AGAINST DEFENDANT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE INTERROGATION OF DAWN PRYOR OCCURRED OUTSIDE THE PRESENCE OF HER GUARDIAN.

POINT II.

IT IS NOT THAT EVIDENCE CONCERNING INTOXICATION WAS HEARD BY THE JURY DURING THE TRIAL, THE TRIAL COURT DID NOT INSTRUCT THE JURY THAT FACT OF EVIDENCE OF INTOXICATION COULD BE CONSIDERED AS EVIDENCE NEGATING THE ELEMENTS OF THE OFFENSE OF MURDER.

POINT III.

THE TRIAL COURT INSTRUCTED THE JURY THAT A HOMICIDAL ACT PERMITS AN INFERENCE OF THE DEFENDANT'S PURPOSE AND KNOWLEDGE TO CAUSE SERIOUS BODILY INJURY RESULTING IN DEATH THEREBY REDUCING THE STATE'S BURDEN OF PROOF OF PROVING THE MURDER OFFENSE BEYOND A REASONABLE DOUBT AND THEREBY VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS 5, 6, & 14, N.J. CONST. (1947), ART. I, PARS. 1, 9 & 10).

POINT FOUR.

UNDER THE FACTUAL CIRCUMSTANCES PRESENTED DEFENDANT WAS NOT ELIGIBLE FOR THE DEATH PENALTY BESIDES DEFENDANT BEING TRIED UNDER AN UNCONSTITUTIONAL STANDARD.

A hearing on defendant's second PCR petition was held before Judge Vena on September 30, 2005. Defendant asserted that he had established prima facie claims of ineffective assistance of trial and appellate counsel, entitling him to an evidentiary hearing. Defendant claimed that trial counsel gave ineffective assistance in the following ways: (a) for failing to argue during the Miranda hearing that defendant's statements were the product of an illegal arrest and that the touching of defendant's chest to feel defendant's heart rate was tantamount to an illegal search; (b) for failing to raise intoxication and/or diminished capacity defenses during the guilt phase of defendant's trial; and (c) for failing to request charges on lesser-included offenses of murder. Defendant also alleges cumulative trial errors and ineffective assistance of appellate counsel for failing to raise on direct appeal the trial court's failure to charge sua sponte lesser included offenses of murder.

Following the arguments of counsel, Judge Vena denied defendant's PCR application ruling that the petition was time-barred by Rule 3:22-12(a). Rule 3:22-12(a) makes clear that no petition for PCR shall be filed more than five years after the filing of the judgment of conviction sought to be attacked, unless the petition alleges facts showing that "the delay beyond that time was due to defendant's excusable neglect."

The five year period commences when the judgment of conviction is entered and is neither stayed nor tolled by appellate review proceedings. See State v. Dillard, 208 N.J. Super. 722 (App. Div.) certif. denied, 105 N.J. 527 (1986). Only "exceptional circumstances" will permit relief from the bar and the court must consider prejudice to the State, the extent of the delay, and the reason therefor. State v. Afanador, 151 N.J. 41, 52 (1997).

Defendant's judgment of conviction was entered July 31, 1985. Defendant's second PCR petition was filed June 8, 1994. Defendant contends that he demonstrated excusable neglect and the PCR court erred in applying the time-bar, because at the time defendant learned that his petition for certification seeking review of his first PCR petition had been denied, the five year period established under Rule 3:22-12 had already elapsed. Defendant claims that he mistakenly believed the five year limit commenced with the conclusion of his initial PCR proceeding, rather than his conviction. Under these circumstances, defendant contends that the PCR court should have relaxed the time-bar provision of Rule 3:22-12 and considered his petition on the merits. Defendant further asserts that because his PCR petition claims ineffective assistance of counsel, an issue of constitutional magnitude, that the procedural bar should be lifted and his petition remanded for a hearing in which his claims can be fully considered.

We are satisfied that Judge Vena correctly ruled that defendant failed to show by a preponderance of the evidence that he was entitled to relaxation of the five-year time-bar. Our Supreme Court has described the rule as "rigorous" and one that is to be applied in accordance with its plain meaning. State v. Murray, 162 N.J. 240, 248-49 (2000). The petition must contain specific facts attributing the delay to excusable neglect in order to relax the five-year bar. State v. Mitchell, 126 N.J. 565, 580 (1992). It is not enough to vaguely allege that an injustice has occurred. State v. Goodwin, 173 N.J. 583, 594 (2002). "Clearly the Supreme Court recognized that a defendant would be likely to have an appeal pending during the five years following the judgment or sentence sought to be attacked and indeed dealt with this very possibility in R. 3:22-3. Thus we infer that the Supreme Court intentionally omitted any provision from R. 3:22-12 to toll the five years while direct appellate relief was available." Dillard, supra, 208 N.J. Super. at 727.

We are convinced that the fact that defendant failed to alert his first PCR counsel of his claims of ineffective assistance of counsel is insufficient to establish a relaxation of the time-bar. We are further convinced that the State will be significantly prejudiced if it is required to relitigate this over twenty year old indictment. These crimes occurred on September 17, 1984. Therefore, law enforcement personnel and eye witnesses may be unavailable or unable to be located. We are satisfied that the strict application of the time-bar by Judge Vena was thus appropriate.

We are equally convinced that defendant's PCR claims could reasonably have been raised in prior proceedings, i.e., either on direct appeal or in defendant's first PCR petition and that defendant's petition is, therefore, procedurally barred by Rule 3:22-4(a). The fact that issues of ineffective assistance of counsel occurred to defendant nearly nine years after his conviction is insufficient reason in our view to lift the procedural bar of Rule 3:22-4(a).

Defendant does not raise any issue based on a constitutional principle established by our courts after his conviction and subject to retroactive application. See State v. Nash, 64 N.J. 464, 474-75 (1974). He does not make claims based on testimony outside of the trial record that could not have been raised on direct appeal. See State v. Sloan, 226 N.J. Super. 605, 612 (App. Div.) certif. denied, 113 N.J. 647 (1988). Additionally, he does not challenge the appellate proceedings themselves. See State v. Morrison, 215 N.J. Super. 540, 544 (App. Div.) certif. denied, 107 N.J. 642 (1987).

Although defendant asserts a claim of constitutional dimension, Rule 3:22-4(c), in order to come within this exception, defendant must show that his constitutional rights were "seriously infringed during the conviction proceedings." Mitchell, supra, 126 N.J. at 585-86. Defendant may not evade the procedural bars of Rule 3:22-4 by "cloaking the claim in constitutional language . . . ." Id. at 586. A court must closely scrutinize defendant's issues to discover if a constitutional right is truly implicated.

Finally, the enforcement of the procedural bar of Rule 3:22-4 will not result in "fundamental injustice." R. 3:22-4(b). There is no fundamental injustice where the court has provided a fair proceeding "leading to a just outcome." Mitchell, supra, 126 N.J. at 587. Defendant has failed to assert any facts that meet the definition of "fundamental injustice." Because defendant had more than ample opportunity on direct appeal and in his first PCR petition to assert all of the claims he now raises, we are satisfied that Judge Vena correctly determined defendant's claims are procedurally-barred.

Although Judge Vena correctly found that defendant's PCR petition was procedurally barred, he nevertheless addressed defendant's allegations of ineffective assistance of trial and appellate counsel on the merits. Before doing so, the court rejected defendant's contention that he was entitled to an evidentiary hearing in order for the court to properly determine his ineffectiveness of counsel claims. The judge found that defendant failed to establish a prima facie case of ineffective assistance of counsel, which the Supreme Court determined must be demonstrated by a defendant in State v. Preciose, 129 N.J. 451, 462-64 (1992) before an evidentiary hearing is required.

To establish a prima facie claim of ineffective assistance, our Supreme Court held a defendant "must demonstrate the reasonable likelihood of succeeding under the test set forth [by the United States Supreme Court] in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed.2d 657, which [it] adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland-Cronic-Fritz, standard, the first issue is whether counsel's performance was deficient. . . . The second . . . is whether there exist 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The judge thoroughly reviewed defendant's allegations of ineffectiveness against the legal requirements to prove an ineffectiveness claim and determined that defendant had not shown that his counsel performed below the objective standard of reasonableness set forth in Strickland and Fritz. The court determined that defendant failed to establish either that the performance of his counsel was deficient or that he was prejudiced as a result of errors in his trial and appellate counsels' performance.

Judge Vena addressed each of defendant's contentions in detail and concluded that trial counsel, (1) rendered competent representation at the hearing on his motion to suppress his statement to the police, finding that counsel's challenges were thorough and complete; (2) that trial counsel was not ineffective in not raising intoxication or diminished capacity defenses during the guilt phase of the trial and that counsel made a reasonable strategic decision to present evidence of defendant's drug addiction at the penalty phase of defendant's trial instead of at the guilt phase where it would have more impact on the jury; (3) that the evidence adduced at trial did not support a charge on lesser included offenses to murder even if counsel had requested them; (4) that a sua sponte charge by the court was not error because such a charge was not clearly indicated by the evidence, (see State v. Thomas, 187 N.J. 199 (2006) and State v. Denofa, 187 N.J. 24, 42 (2006)); (5) that defendant's appellate counsel's decision not to raise the issue of the trial judge's failure to charge lesser included offenses to murder before the Appellate Division's Excess Sentencing panel did not constitute deficient representation; and (6) that defendant failed to show evidence of cumulative errors in the conduct of his trial, which constituted a deprivation of his right to due process and a fair trial.

We have thoroughly reviewed the PCR record in light of the written and oral arguments advanced by defendant and the State. We affirm the denial of defendant's second PCR petition as to the ineffective assistance of trial and appellate counsel substantially for the reasons stated by Judge Vena in his oral decision of September 30, 2005.

As to defendant's allegation of ineffectiveness of PCR counsel, we add the following. Defendant contends that during the initial PCR proceeding, PCR counsel was ineffective in not raising an ineffective assistance of counsel argument even though defendant had referred to the same in his pro se brief. He asserts that PCR counsel simply restated the excess sentence argument already considered by the Appellate Division Excess Sentencing Panel. Defendant alleges that by doing so, counsel failed to recognize that while Rule 3:22-2(c) permits PCR to challenge an excessive or illegal sentence, that Rule 3:22-5 bars arguments, which have been expressly adjudicated, as was the case with defendant, because his excessive sentencing issue had been expressly reviewed by this court.

We are satisfied that defendant's allegation is procedurally barred because it could have been asserted as part of the appeal of the denial of his first PCR petition, Rule 3:22-4. Additionally, defendant's claim is mooted by the filing of his second PCR petition and because Judge Vena considered in his denial of defendant's second PCR petition the merits of the issues that he now asserts should have been raised in his first PCR petition. Further, in view of our affirmance of Judge Vena's denial of the ineffective assistance arguments advanced by defendant, we are satisfied that PCR counsel's failure to raise defendant's ineffective assistance of counsel issues in his first PCR petition did not prejudice defendant. Therefore, defendant has failed to satisfy the prejudice prong of the Strickland/Fritz test, which is necessary for an ineffective assistance of counsel claim to be proved.

The remaining claims advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed 2d

694 (1966).

(continued)

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A-1592-05T4

February 1, 2007