SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5367-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEMONT O. LOVE,

Defendant-Appellant.

_____________________________

Submitted January 29, 2019 – Decided

Before Judges Hoffman, Suter and Geiger.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Indictment No. 10-09-

1289.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Kevin G. Byrnes, Designated Counsel, on 

the briefs).

Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (Nancy A. Hulett, Assistant 

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.

March 11, 2019
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A-5367-16T4

PER CURIAM

Defendant Lemont Love appeals from a May 31, 2017 Law Division order 

denying his petition for post-conviction relief (PCR). We affirm.

In 2011, a jury found defendant and his co-defendant, Randy Williams, 

guilty of second-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, 

N.J.S.A. 2C:18-2; and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). 

The trial judge sentenced defendant to an aggregate term of twelve years of 

imprisonment with an eighty-five percent period of parole ineligibility, pursuant 

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also 

ordered defendant to serve a five-year term of parole supervision, after 

completing his prison term.

We briefly summarize the evidence presented at trial. Darin Sloat owed 

defendant a significant amount of money. On the morning of February 17, 2010, 

Sloat was staying at a motel in East Brunswick with his girlfriend, K.E., and her 

ten-month-old son, when defendant and two co-defendants entered the room and 

attacked Sloat. Defendant stomped and kicked Sloat, co-defendant Randy 

Williams punched Sloat in the head and neck, and co-defendant Charles Opher 

punched Sloat in the lower back.
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Following the assault, defendant, Williams, and Opher ran out of the motel 

room, taking Sloat's cell phone with them, and fleeing in a silver Pontiac. After 

an alert went out for their vehicle, the police apprehended the trio in Spotswood. 

The police recovered Sloat's cell phone from the vehicle, and testing confirmed 

the presence of blood on defendant's sneakers. The police transported 

defendant, Williams, and Opher to the police station, where East Brunswick 

police also brought Sloat to see if he could identify the persons who assaulted 

him. As defendant, Williams, and Opher stepped out of the police vehicle, one 

by one, Sloat identified each one as participating in the assault. Sloat then gave 

a statement to the police. Sloat testified to these events at trial.

A Middlesex County grand jury indicted defendant, Williams, and Opher 

on charges of robbery, burglary, and aggravated assault. Opher resolved his 

charges through a plea agreement, which called for him to testify against 

defendant and Williams. At trial, Opher testified that he, defendant, and 

Williams each hit or stomped Sloat. K.E. also testified that she saw all three 

defendants "kicking [Sloat] and punching him in the head and the back."

On direct appeal, defendant raised the following issues:

POINT I

THE JUROR'S CONTACT WITH DEFENDANT 

OUTSIDE THE COURTROOM, IN A SEPARATELY 
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SECURED HALLWAY, WHILE HE WAS IN 

HANDCUFFS AND IN THE CUSTODY OF 

SHERIFF'S OFFICERS, DEPRIVED HIM OF A FAIR 

TRIAL BY AN IMPARTIAL JURY U.S. CONST.

AMEND. XIV; N.J. CONST. (1947) ART. I, [¶] 1, 9, 

10.

POINT II

THE PROSECUTOR'S ARGUMENT IN HER 

CLOSING STATEMENT, THAT THE THEFT 

COMPONENT OF THE ROBBERY CHARGE WAS 

RELATED TO AN ATTEMPT TO COLLECT 

MONEY THAT SLOAT OWED TO LOVE, WAS A 

THEORY OF ROBBERY THAT WAS NEVER 

PRESENTED TO THE GRAND JURY. 

DEFENDANT'S CONVICTION FOR ROBBERY, 

THEREFORE, MUST BE VACATED.

POINT III

THE COURT'S RESPONSE TO THE JURY'S 

QUESTION, THAT THEY MAY CONSIDER THE 

THEFT OF SLOAT'S CELL PHONE AS A LESSERINCLUDED CHARGE UNDER ROBBERY, WAS 

CONFUSING AND CONTRADICTORY, AND 

DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT IV

BECAUSE THE STATE FAILED TO PRESENT 

SUFFICIENT FACTS AT TRIAL, DEFENDANT'S 

CONVICTION FOR ROBBERY MUST BE 

VACATED.

In his pro se brief, defendant raised the following additional points:
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POINT I

DEFENDANT WAS DENIED [A] FAIR TRIAL AND 

DUE PROCESS OF LAW IN VIOLATION OF THE 

U.S. CONST. AMENDS. V, VI, AND XIV AND N.J. 

CONST. (1947) ART. I, [¶] 1, 8, 9 AND 10 BECAUSE 

THE MATERIAL VARIANCE BETWEEN THE 

GRAND JURY PROSECUTOR'S 

REPRESENTATION THAT THE FIRST[-]DEGREE 

ROBBERY WAS BASED ON THE TAKING OF MR. 

SLOAT'[S] CELLPHONE AND THE TRIAL 

PROSECUTOR'S REPRESENTATION THAT THE 

FIRST[-]DEGREE ROBBERY WAS BASED ON 

MONEY THAT DEFENDANT THOUGHT MR. 

SLOAT HAD OWED HIM.

POINT II

THE JURY CHARGE WAS PREJUDICIALLY 

DEFECTIVE BECAUSE THE TRIAL COURT'S 

INSTRUCTIONS WERE MISLEADING AND 

CONTRARY TO THE ROBBERY CHARGE 

DEFENDANT WAS INDICTED FOR. U.S. CONST.

AMENDS. V, VI, XIV AND N.J. CONST. (1947) 

ART. I., [¶] 1, 8, 9 AND 10.

POINT III

DEFENDANT WAS DENIED A FAIR TRIAL AND 

DUE PROCESS OF LAW IN VIOLATION OF THE 

U.S. CONST. AMENDS. VI AND XIV AND N.J. 

CONST. (1947) ART. I., [¶] 1, 8, 9 AND 10 BECAUSE 

THE MATERIAL VARIANCE BETWEEN THE 

GRAND JURY PROSECUTOR'S 

REPRESENTATION THAT THE SECOND[-

]DEGREE BURGLARY WAS FOR THE PURPOSE 

OF ROBBING DARREN SLOAT OF CELL PHONE 

AND THE TRIAL 
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PROSECUTOR'S REPRESENTATION THAT THE 

ROBBERY WAS BASED ON MONEY THAT 

DEFENDANT THOUGHT MR. SLOAT HAD OWED 

HIM.

POINT IV

DEFENDANT WAS DENIED THE EFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL WHEN HIS 

ATTORNEY FAILED TO FILE A CLEARLY 

MERITORIOUS MOTION TO SUPPRESS THE CELL 

PHONE WHICH WAS ILLEGALLY SEIZED 

WITHOUT A SEARCH WARRANT. U.S. CONST.

AMENDS. VI, XIV; AND N.J. CONST. (1947) ART. 

I, [¶] 8, 9, 10.

POINT V

DEFENDANT'S MOTION FOR A JUDGMENT OF 

ACQUITTAL AND NEW TRIAL ON ALL COUNTS 

IN THE INDICTMENT SHOULD HAVE BEEN 

GRANTED IN THE INTEREST OF JUSTICE.

POINT VI

THE CUMULATIVE ERRORS IN POINTS I, II, III, 

IV, AND V, ABOVE THAT OCCURRED DURING 

THE DEFENDANT'S TRIAL RENDERED THE 

UNDERLYING TRIAL UNFAIR.

POINT VII

DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE 

THE COURT FAILED TO CONSIDER WHETHER 

TO IMPOSE THE DISCRETIONARY EXTENDED 

TERM PURSUANT TO N.J.S.A. 2C:44-3.
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We rejected these arguments and affirmed defendant's convictions and 

aggregate sentence; however, we remanded for the trial court to merge 

defendant's aggravated assault conviction into his armed robbery conviction.

State v. Love, No. A-5409-10T1 (App. Div. July 31, 2014) (slip op. at 27). Our 

Supreme Court denied certification. State v. Williams, 220 N.J. 269 (2015).

In March 2015, defendant filed the PCR petition under review. After 

assigned counsel filed a brief on defendant's behalf, defendant discharged his 

attorney. On October 20, 2016, the PCR judge heard extensive oral argument 

from defendant in support of his petition. On May 31, 2017, the PCR judge 

entered an order denying PCR without an evidentiary hearing, and noted, "This 

[o]rder will be supplemented by a written opinion." On August 9, 2017, the 

PCR judge issued a twenty-one page opinion setting forth his reasons for 

denying PCR. In his opinion, the PCR judge analyzed and rejected each of 

defendant's claims, and concluded none warranted an evidentiary hearing.

This appeal followed, with defendant presenting the following arguments:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL AS 

GUARANTEED BY THE SIXTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION AND ART. 

1, PAR. 10 OF THE NEW JERSEY CONSTITUTION
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A. Trial and Appellate Counsel Improperly 

Permitted Their Client to be Convicted Without 

Complete and Accurate Instructions on the Law

1. The Trial Court Erroneously Instructed

Jurors that They Could Convict the Defendant of 

Robbery Based on an Attempted Theft Without 

an Instruction on that Essential Element of the 

Crime

2. Trial and Appellate Counsel Should Have 

Raised the Issue of a Clawans[1] Charge

B. Trial Counsel Failed to Investigate the Case

Adequately

C. Trial Counsel Failed to File Defense Motions

1. Trial Counsel Failed to File a Motion to

Suppress Evidence

a. The Defendant's Sneakers Should 

Have Been Suppressed

b. The Cell Phone Seized from 

Defendant's Vehicle Should Have Been 

Suppressed

2. Trial Counsel Failed to File a Motion to 

Dismiss the Indictment Due to Selective 

Prosecution

POINT II

THE TRIAL JUDGE, WHO HAD PREVIOUSLY 

BEEN RESPONSIBLE FOR THE PROSECUTION OF 

 

1

 State v. Clawans, 38 N.J. 162 (1962).
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THE DEFENDANT AS THE MIDDLESEX COUNTY 

PROSECUTOR, SHOULD HAVE RECUSED 

HIMSELF FROM THE TRIAL

POINT III

THE DEFENDANT IS ENTITLED TO AN 

EVIDENTIARY HEARING

POINT IV

THE IMPOSITION OF A FIVE-YEAR PERIOD OF 

PAROLE SUPERVISION UPON RELEASE FOR THE 

COMMISSION OF A SECOND-DEGREE CRIME IS 

ILLEGAL

Defendant also filed a pro se supplemental brief, presenting these 

arguments:

POINT I

THE DEFENDANT WAS DENIED HIS RIGHT TO 

EFFECTIVE ASSISTANCE OF TRIAL AND 

APPELLATE COUNSEL IN VIOLATION OF THE 

SIXTH AMEN[D]MENT TO THE UNITED STATES 

CONSTITUTION AND ART. 1 PAR. 10 OF THE 

NEW JERSEY CONSTITUTION

a. Trial counsel failed to file meritorious motions

1. Trial counsel failed to file a motion to 

suppress the cell[]phone found in the defendant's 

vehicle that belonged to the victim.

2. Trial counsel failed to file a motion to 

dismiss the indictment based on 

selective/malicious prosecution.
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POINT II

THE STATE'S MISCONDUCT IN THE 

PRESENTATION OF A FALSE CASE TO THE JURY 

VIOLATED DEFENDANT'S RIGHTS TO A FAIR 

TRIAL IN VIOLATION OF THE SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND ART. 1 PARS. 1 

AND 10 OF THE NEW JERSEY CONSTITUTION

II

We agree with defendant's argument that the trial court should have 

ordered a three-year period of parole supervision, instead of the five-year term 

of parole supervision, upon completion of his prison term. We therefore vacate 

that aspect of defendant's judgment of conviction and direct the court to enter 

an amended judgment of conviction imposing a three-year period of mandatory 

parole supervision, upon completion of defendant's prison term. We find no 

merit in defendant's remaining arguments and affirm substantially for the 

reasons stated by the PCR judge in his comprehensive written opinion. We add 

the following comments.

During a pretrial hearing, the assistant prosecutor reported to the trial 

judge that she had talked to Sloat for the first time since the grand jury 

proceedings, and he told her, for the first time, that an unidentified female 

actually owed defendant the money, not Sloat. Sloat essentially claimed that he 
11 A-5367-16T4

brokered a drug deal between the woman and defendant, and that she ripped 

defendant off, and defendant blamed Sloat for the incident. To his credit, 

defendant's trial counsel objected, stating the evidence is "highly prejudicial," 

as the evidence would "tell the jury [defendant] sold some drugs to some girl" 

and the evidence further "might be related somehow to the motive." The trial 

judge agreed, and a compromise was made whereby no mention of the female 

or drugs would occur at trial, but the State could assert that defendant was 

seeking to collect money from Sloat.

Defendant argues that his trial counsel should have moved for a Clawans2

charge, "authoriz[ing] defendant to draw an adverse inference against the State 

during summation based on the State's failure to produce a witness with relevant 

evidence of the facts . . . ." According to defendant, "[s]ince the girl was the 

lynchpin of the State's case, the State had an obligation to produce her." 

However, defendant also asserts that "the defense contended that there was no 

drug deal, no money owed, and no girl." Defendant's argument is clearly 

convoluted and meritless – if there was no girl, then there was no witness that 

the State failed to produce. Moreover, nothing regarding the girl or the drug 

deal was admitted at trial, invalidating defendant's claim that it was the 

 

2

 State v. Clawans, 38 N.J. 162, 171 (1962).
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"lynchpin" of the State's case. In addition, defendant presented no argument as 

to how he was prejudiced by his counsel's alleged error.

Defendant's petition alleged his trial counsel provided ineffective 

assistance because he failed to raise the issue of selective prosecution. 

According to defendant, his trial counsel should have pursued a selective 

prosecution claim based upon his contention that the attack at the motel was the 

fault of his girlfriend at the time, J.S., a Caucasian. The PCR judge properly 

rejected defendant's selective prosecution claim because there was no evidence 

that J.S. was involved in the robbery. In fact, the judge noted the evidence 

produced at trial showed that J.S. feared defendant. If defendant wanted to call 

J.S. as a witness, he could have done so.

Defendant's contention that his trial counsel should have requested an 

instruction on the law of attempted theft clearly lacks merit. The trial judge did 

instruct the jury on the crime of attempt, during the instruction on aggravated 

assault.

Before the PCR judge, defendant also claimed the trial judge should have 

recused himself because the judge previously served as the Middlesex County 

Prosecutor from 1998 to 2002, when defendant was prosecuted for other crimes.
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The PCR judge correctly rejected this claim since the trial judge did not 

personally participate in defendant's prior case, which concerned indictments 

from 1998. Defendant's remaining arguments lack sufficient merit to warrant 

further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part, and vacated and remanded in part.