NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2834-19 STATE OF NEW JERSEY, Plaintiff-Respondent, v. LINCOLN J. SMITH, Defendant-Appellant. ________________________ Submitted March 16, 2021 – Decided June 23, 2021 Before Judges Gilson and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-02-0218. Joseph E. Krakora, Public Defender, attorney for appellant (John J. Bannan, Designated Counsel, on the brief). Robert J. Carroll, Morris County Acting Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM Defendant Lincoln J. Smith and a female were observed by a Morristown police officer—to whom both were known—engage in a hand-to-hand sale of a suspected controlled dangerous substance (CDS). After the female was arrested and admitted to police she purchased cocaine from defendant, and a search of the vehicle from which defendant was seen exiting revealed more suspected CDS, defendant was indicted for: third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two); third-degree conspiracy to possess CDS, N.J.S.A. 2C:5-2(a)(1) and 2C:35-10(a)(1) (count three); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count four); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35- 5(b)(3) (count five); third-degree conspiracy to possess with intent to distribute CDS, N.J.S.A. 2C:5-2(a)(1), 2C:35-5(a)(1) and 2C:35-5(b)(3) (count six); second-degree possession with intent to distribute CDS within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count seven); he was also charged in a complaint- warrant with possession of marijuana, N.J.S.A. 2C:35-10(a)(4). He pleaded guilty to second-degree possession of cocaine with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1, and was sentenced on August 29, 2006, in accordance with the plea agreement—under which the State agreed not 2 A-2834-19 to seek an extended-term sentence or a period of parole ineligibility—to a five- year prison term; all other charges were dismissed. He did not file a direct appeal. The Department of Homeland Security initiated removal proceedings against defendant, a citizen of Jamaica who entered the United States in 1987, by serving him with a Notice to Appear in August 2017. See Smith v. Barr, 444 F. Supp. 3d 1289, 1291-92 (N.D. Okla. 2020), appeal dismissed, No. 20-5053, 2020 U.S. App. LEXIS 36684 (10th Cir. Aug. 20, 2020). Immigration and Customs Enforcement (ICE) agents took defendant into custody on or about August 21, 2017. Id. at 1292. On January 2, 2019, defendant filed a pro se petition for post-conviction relief (PCR) 1 which was denied by the PCR court. He appeals from that order, arguing: POINT I BECAUSE [DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR PCR. (A) Legal Standards Governing …
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