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State v. Pagan

August 3, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN PAGAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, S-1462-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 14, 2007

Before Judges Stern and A. A. Rodríguez.

Defendant, Kevin Pagan, appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Following a jury trial, defendant was convicted of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). On November 16, 2000, Judge Timothy R. Sullivan, the trial judge, imposed a ten-year term with a NERA*fn1 parole disqualifier. We affirmed. State v. Pagan, No. A-2311-00T3 (App. Div. November 18, 2002), certif. denied, 178 N.J. 30 (2003).

The facts surrounding the crime are detailed in our opinion on direct appeal. These are the salient facts. On November 7, 1998, defendant, a Ramapo College student, was at his parents' house in Oradell. His parents were not at home when three friends, including Goh Nishiyama, came to visit. After drinking a twelve-pack of Heineken beer, defendant, Nishiyama and a third young man went to the Garden Tavern in New York City at approximately 12:30 a.m. At the tavern, the three men consumed beer and hard liquor.

At around 5:00 a.m., after eating something outside the tavern, defendant and Nishiyama returned home. Defendant drove Nishiyama in his car. On the Henry Hudson Parkway, defendant's vehicle and another vehicle had a minor fender-bender. The other vehicle left the scene. Defendant continued driving home. While driving north on Bogart Road in River Edge, defendant was cut off by the victim's van. Defendant honked his horn at the driver, Fadi Awad. Defendant followed Awad's van onto Windsor Road. When the van stopped, defendant parked his car in the middle of the street next to it. Nishiyama, who had been sleeping since the car went over the George Washington Bridge, awoke and heard shouting between Awad and defendant. Nishiyama testified that he had no idea who Awad was.

Awad got out of the van and walked around to the driver's side window where defendant was sitting and they continued their verbal argument. Awad started to walk away when defendant got out of the car and followed him. When Awad grabbed defendant's wrist, defendant pulled away and punched Awad in the face.

Defendant and Awad became interlocked. Nishiyama got out of the car, approached the two men and punched Awad in the left side of his head. Awad and Nishiyama became interlocked and were grappling.

A neighbor saw Awad along with two other men "scuffling." Defendant grabbed Awad, and holding his arms, directed Nishiyama to hit Awad. Nishiyama swung at Awad, missed and hit defendant in the eye. Nishiyama and Awad started grappling again and fell onto the grass together. Nishiyama got up and kicked Awad in the head once. Awad started crawling away on all fours towards a nearby house. Nishiyama kicked Awad two or three times in the torso area.

Other neighbors testified that around 5:15 a.m., they heard Awad moaning, yelling for help and asking for someone to call 9-1-1. A neighbor called 9-1-1.

Nishiyama started back towards the car because he believed Awad was now making a scene and wanted to leave the fight so as to get away before the police arrived. Defendant continued to kick Awad. Nishiyama got into the car, expecting defendant to be following him. However, defendant was still kicking Awad. Nishiyama yelled at defendant to come to the car so that they could leave. Nishiyama got out of the car, walked over to defendant and grabbed him by the jacket to try to get him to return to the car. Nishiyama saw defendant stomping on Awad's head with his feet. Awad was motionless and completely silent.

Following his conviction and direct appeal, defendant filed a PCR petition pro se. Subsequently, present counsel assisted in the preparation of a supporting certification by Eileen Pagan, defendant's mother. The certification alleged ineffective ...


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