On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Michels, O'Brien and Skillman. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant appeals from the denial of his petition for post-conviction relief. We affirm.
On April 24, 1980, defendant was convicted on Indictment # 222-78 of carnally abusing M.D., a 15 year old child, in violation of N.J.S.A. 2A:139-1, upon which he was sentenced on July 3, 1980 to a minimum of eight and a maximum of 10 years in the New Jersey State Prison. We affirmed that conviction on February 4, 1982. Defendant withdrew a pro se petition for post-conviction relief which he had filed on August 10, 1981. Thereafter the present petition for post-conviction relief was filed on April 19, 1982. After a hearing, it was denied by the trial judge, and this appeal is from that denial. We affirm.
The offense which is the subject matter of this conviction was committed on December 22, 1977. It occurred in a small back room of a seafood store operated by defendant and Mack Ross (Ross). The victim told the police she had left a pair of brown pantyhose at the crime scene. Thereafter a police officer went to the store, explained the purpose of his visit to Ross and, allegedly with Ross' consent,*fn1 searched the back room where he found and seized the pantyhose.
In a separate indictment # 369-78, defendant was charged with carnally abusing M.J., also a child 15 years of age, on
October 13, 1977.*fn2 After a bench trial on March 20, 1979, defendant was convicted on that indictment and sentenced on June 7, 1979.
Defendant retained private counsel to represent him on both indictments. Defendant was arraigned on Indictment # 222-78 on March 16, 1978, but his motion to suppress the pantyhose was not filed until May 8, 1979.*fn3 As was the practice in Passaic County, the motion was not heard until April 14, 1980, when the trial on Indictment # 222-78 was about to commence. By this time defendant was represented by the public defender. The State objected to the timeliness of the motion under R. 3:5-7.
In an effort to demonstrate good cause to enlarge the time to move to suppress beyond the required 30 days after the initial plea, pursuant to R. 3:5-7, the public defender asked Robert Goodman (Goodman), defendant's original private counsel, to explain to the court the reasons for his delay in filing the motion. Goodman testified that he was representing defendant on Indictment # 369-78, when Indictment # 222-78 was returned. According to Goodman, the defendant continually assured him that the charge in Indictment # 222-78 was not serious and he could explain it away. The State moved to consolidate the two cases for trial in January 1978, at which time, according to Goodman, he obtained discovery for the first time. Through this discovery, he learned that the pantyhose had been taken from the back room of the business establishment and that defendant's business partner Ross had allegedly
consented to the search.*fn4 Although Goodman had reservations about the potential success of a motion to suppress in view of Ross' alleged consent, he nevertheless filed the motion.*fn5
Relying upon State v. Allaband, 134 N.J. Super. 353 (App.Div.1975), the trial judge concluded that the neglect of an attorney in filing a motion to suppress does not constitute good cause to extend the time. He therefore denied the motion to suppress on April 16, 1980 as untimely. Trial commenced immediately thereafter and defendant was convicted. After denial of his motion for a new trial, defendant was sentenced on July 3, 1980. On his original appeal to this court, defendant did not seek review of the denial of his motion to suppress.
Initially, defendant's petition for post-conviction relief was denied by the trial judge by letter opinion of June 1, 1982. The judge found that petitioner's first two grounds, i.e., refusal to hear his motion to suppress as untimely and inadequacy of trial counsel, had not been raised on direct appeal and thus could not be raised in a petition for post-conviction relief. R. 3:22-4. However, the judge recognized that defendant's third ground, i.e., ineffective assistance of appellate counsel, obviously could not have been raised in the appeal and he therefore addressed it. The judge reviewed his findings of fact when he concluded that the motion to ...