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State v. Olowu

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 11, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID OLOWU, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-12-1170.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2007

Before Judges Weissbard and Gilroy.

Defendant appeals from the June 28, 2006, order of the Law Division, denying his petition for post-conviction relief (PCR). We affirm.

On December 10, 1993, defendant was charged under Essex County Accusation No. 93-12-1170 with third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count One) and third-degree threats in official matters, N.J.S.A. 2C:27-3a(2) (Count Two). On the same day, defendant entered into a negotiated plea agreement and pled guilty to Count Two in exchange for the State's recommendation of a custodial sentence, not to exceed 364 days as a condition of probation, and dismissal of Count One. On December 17, 1993, defendant was sentenced to a period of two years of probation, conditioned upon serving 364 days in the Essex County Jail. In addition, defendant was directed to pay a fine of $1,000 at the rate of $100 per month, find and continue in gainful employment, undergo psychiatric/psychological counseling and not have any contact with the victim. On April 14, 1994, defendant appealed the sentence as excessive. On April 29, 1996, we dismissed the appeal as moot, defendant having been released from custody. State v. Olowu, No. A-1815-95T4 (App. Div. April 22, 1996).

On August 21, 1996, defendant filed his petition for PCR. For reasons unexplained, the PCR was not addressed until June 28, 2006, when Judge Vichness heard argument on the petition and denied the same. A confirming order was entered that day.

After carefully considering the record and briefs, we affirm substantially for the reasons stated by Judge Vichness in his oral opinion of June 28, 2006, while noting that all of defendant's arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comment.

Defendant argues that his guilty plea was not voluntary, contending that he feared for his safety because a riot had occurred while he was incarcerated in the pre-trial section of the Essex County Jail. We reviewed the transcript of the December 10, 2006 plea proceeding, and are satisfied that Judge Joseph Falcone properly determined after inquiry of defendant, that there was a factual basis for the plea and that the plea was made voluntarily, not as a result of any threats, promises, or inducements not disclosed on the record, and with defendant's understanding of the nature of the charge and the consequences of the plea. R. 3:9-2. The record is devoid of any indication by defendant that he had entered the plea to avoid being returned to the pre-trial section of the jail. Judge Vichness rejected defendant's argument, and so do we.

Affirmed.

20071011

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