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State v. Sanchez

July 9, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FERNANDO SANCHEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Ind. No. 99-02-0436.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 25, 2007

Before Judges Lefelt and Sapp-Peterson.

Defendant Fernando Sanchez appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). Defendant's conviction and sentence arose out of an attack upon a neighbor who lived across the street from the home of his girlfriend. Masked and armed with a hammer, defendant entered the victim's home and proceeded to attack her. The victim recognized defendant despite the mask. Defendant later admitted his involvement in a statement to police. The PCR judge rejected defendant's claim of ineffective assistance of both trial and appellate counsel. We affirm.

A jury found defendant guilty of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and (b)(2); second-degree burglary, N.J.S.A. 2C:14-2(a)(1); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2(a)(3); second-degree attempted aggravated sexual assault with physical force, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(6); and second-degree attempted aggravated sexual assault while armed with a weapon, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(4). At sentencing, the trial court imposed an aggregate forty-five years incarceration with twenty-five and one-half years parole ineligibility. On appeal, we affirmed the conviction but remanded for resentencing in an unpublished opinion. State v. Sanchez, No. A-2900-00T4 (App. Div. July 24, 2002). Upon re-sentencing, defendant's aggregate sentence was reduced to thirty years imprisonment with a twenty-five and one-half year period of parole ineligibility.

The Supreme Court denied defendant's petition for certification. State v. Sanchez, 174 N.J. 548 (2002).

Defendant filed a PCR petition claiming that trial counsel failed to demand a Miranda hearing to challenge the voluntariness of his statement and also failed to investigate and retain an expert to testify concerning his physical and/or psychological inability to sexually assault the victim, as well as the fact that defendant could not have intended or desired to sexually assault the victim. Defendant claimed his appellate counsel was equally ineffective because counsel did not raise material arguments that should have been gleaned from the record, failed to retain an expert to buttress defendant's position that he was psychologically unable to rape the victim, and failed to explore a possible insanity defense. Defendant also raised a claim of prosecutorial misconduct. In a written opinion, the trial court denied defendant's petition.

On appeal, defendant presents the following arguments:

POINT I

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED SANCHEZ OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

POINT II

SANCHEZ WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL'S REMARKS TO THE JURY DURING OPENING STATEMENTS WERE HIGHLY ...


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