On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Ind. Nos. 98-02-0123/98-10-1023.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Lihotz.
Defendant Geronimo Shabazz appeals from an order denying his petition for post-conviction relief (PCR), without an evidentiary hearing, entered on June 22, 2005. We affirm.
On September 28, 1997, defendant was charged in Passaic County Indictment No. 98-10-1023, with fourth-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) and b(11) (count one); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and (3) third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three). Defendant was tried in abstentia, and convicted by a jury of all charges on December 10, 1998.
On January 6, 1998, defendant was again charged with drug offenses in a three count indictment (No. 98-10-1023). He pled guilty to the third count, third-degree possession of CDS with intent to distribute within 1000 feet of school property, on September 23, 1999. The terms of the plea agreement provided that in exchange for his guilty plea, defendant would be sentenced to a custodial term of five years with a two-year period of parole ineligibility to run concurrent with the sentence to be imposed by the court for the 1998 conviction; the other two counts of the indictment were to be dismissed.
That same day, defendant also pled guilty to two counts of third-degree possession of CDS with intent to distribute within 1000 feet of school property, as set forth in Accusation No. 99-09-889A, which had been filed on September 23, 1999. The plea agreement provided that defendant would be sentenced on the first count of the accusation to a custodial term of five years, with a two-year period of parole ineligibility, to run concurrently with the sentence to be imposed on the 1998 conviction, and, on the second count, a custodial term of five years with a two-year period of parole ineligibility that would run consecutively to count one, but concurrently to his sentence to be imposed on the 1998 conviction.
Judge Clark accepted defendant's guilty plea to the one remaining count of Indictment No. 98-10-1023 and the two counts of Accusation No. 99-09-889A. She sentenced defendant in accordance with the plea agreements. Sentencing on the original convictions, under Indictment No. 98-02-0123, was held on November 12, 1999. Judge Clark granted the State's request for an extended term, merged the first two convictions into the third, and sentenced defendant to a term of incarceration for ten years with a five-year parole ineligibility period on count three, third-degree possession of CDS with intent to distribute within 1000 feet of school property. Applicable penalties and assessments were imposed.
Defendant's conviction and sentence were affirmed by us in an unpublished opinion dated January 17, 2002. State v. Washington, No. A-0631-004 (App. Div. Jan. 17, 2002). Certification was denied on March 20, 2002.
Defendant filed a PCR petition, which, in addition to challenging the effectiveness of trial counsel, also alleged two trial errors. After due consideration of all issues raised, Judge Clark denied the petition for PCR.
On appeal, defendant pursues only the ineffective assistance claims raised below, and also challenges his sentence as excessive, in these arguments:
THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED SHABAZZ OF A FAIR TRIAL AND RENDERED THE JURY'S ...