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State v. Maisonet

September 25, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENEDICTO MAISONET, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 98-07-1159.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2007

Before Judges Graves and Alvarez.

Defendant Benedicto Maisonet's petition for post-conviction relief was denied on December 14, 2005, without an evidentiary hearing. On appeal, defendant raises the following arguments:

POINT I

DEFENDANT WAS DENIED FUNDAMENTAL FAIRNESS. THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

In a pro se brief, defendant raises only the effective assistance of appellate counsel issue.

We have carefully reviewed the record in light of defendant's contentions and the applicable law, and conclude that defendant's claims are without merit. Consequently, we affirm.

Defendant was convicted by a jury on June 27, 2001, of third-degree cocaine distribution. The court imposed a seven-year state prison term subject to three years of parole ineligibility, as defendant was mandatory extended term eligible pursuant to N.J.S.A. 2C:43-6(f). On direct appeal, we affirmed the conviction and sentence. State v. Maisonet, No. A-5680-01 (App. Div. Dec. 31, 2003). The Supreme Court denied certification. State v. Maisonet, 180 N.J. 151 (2004).

We summarize the trial evidence as follows. Union City Detective Juan A. Loacess testified that at approximately 10 p.m. on March 10, 1998, he was stationed on a rooftop narcotics surveillance post. From that position, while using a twelve-inch long telescope, Loacess observed defendant, along with his co-defendant Nelson Franco, selling drugs to a third man in the area of 45th and 46th Streets and Broadway. The surveillance team immediately arrested defendant who was found to have cash on his person.

On cross-examination, Loacess acknowledged that in neither his police report nor his grand jury testimony did he mention using a telescope. During an earlier mistrial he had testified he used binoculars, not a telescope, while surveilling the area. He attributed his confusion as to the device used to ...


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