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State v. Burgess

March 29, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES BURGESS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 1977-10-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2007

Before Judges S.L. Reisner and Seltzer.

Defendant appeals from an October 12, 2005, order that denied his post-conviction relief (PCR) petition without an evidentiary hearing, and we affirm.

Defendant was originally charged in a twelve-count indictment arising from an incident occurring on or about May 30, 2000, in Newark. The charges included two counts of attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3; two counts of aggravated assault, N.J.S.A. 2C:12-1b(1); three counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(c); receiving stolen property, N.J.S.A. 2C:20-7; and eluding police, N.J.S.A. 2C:29-2(b).

On January 29, 2003, defendant pled guilty to an amended charge of second-degree assault and third-degree unlawful possession of a weapon, receiving a recommendation of a nine-year custodial term with an eighty-five percent parole disqualifier on the assault charge and a concurrent five-year term on the unlawful possession charge. The parole disqualifier was required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentence, imposed on April 3, 2003, was concurrent with a sentence defendant was then serving on an unrelated conviction.

The sentence was reviewed on the excess sentencing calendar and affirmed on January 7, 2004. Certification was denied. State v. Burgess, 180 N.J. 457 (2004). Defendant filed a PCR application on September 21, 2004, which was heard October 6, 2005, and an order denying relief was signed on October 12, 2005. On appeal from that order, defendant argues:

POINT I

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO INFORM HIM OF THE PENAL CONSEQUENCES OF HIS PLEA.

POINT II

THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE OF TRIAL COUNSEL'S FAILURE TO ADEQUATELY INFORM THE DEFENDANT OF THE PENAL CONSEQUENCES OF HIS PLEA. POINT III

THE DEFENDANT DID NOT PRESENT FACTS AT HIS PLEA HEARING SUFFICIENT TO ESTABLISH THE CHARGE OF ASSAULT OF THE SUBSEQUENT APPLICATION OF THE ...


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