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State v. Sotomayer

October 25, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GIOVANNI SOTOMAYER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-11-1723.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2007

Before Judges Parker and R. B. Coleman.

Defendant Giovanni Sotomayer appeals from an order issued by the Superior Court of New Jersey, Law Division, Hudson County, on March 1, 2006, denying his petition for post-conviction relief (PCR). We have considered defendant's contentions on appeal, and we affirm in part and remand in part.

On February 27, February 28, March 1 and March 2, 2001, defendant was tried before Judge Paul M. Pascale and a jury. The jury found defendant guilty of first degree kidnapping, N.J.S.A. 2C:13-1b, first degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a, third degree criminal restraint, N.J.S.A. 2C:13-2, second degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d, fourth degree possession of a knife under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d, and third degree terroristic threats, N.J.S.A. 2C:12-3b. Although acquitted of second and third degree aggravated assault, the jury found defendant guilty of simple assault, a lesser-included offense.

The court merged several of the offenses at sentencing, and sentenced defendant to twenty-five years imprisonment for first degree kidnapping with a No Early Release Act (NERA) stipulation of eighty-five percent to be served before parole eligibility. On the charge of attempted aggravated sexual assault, the court imposed a sentence of ten years with eighty-five percent to be served before parole eligibility. Lastly, Judge Pascale sentenced defendant to a five-year prison term with two and a half years of parole ineligibility for the unlawful possession of a weapon. These sentences were to be served concurrently.

On direct appeal, this court affirmed both the conviction and sentencing in an unpublished per curiam opinion, State v. Sotomayer, No. A-2653-01T4, (App. Div. May 30, 2003), and on October 16, 2003, the New Jersey Supreme Court denied defendant's petition for certification. State v. Sotomayor, 178 N.J. 31 (2003).

Defendant thereafter filed, pro se, a petition seeking PCR with the Law Division, claiming that he received ineffective assistance of counsel. As this was defendant's first petition for PCR, he was assigned counsel. After hearing oral argument, the trial court denied the petition on February 16, 2006. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I: THE COURT ERRED IN DENYING MR. SOTOMAYER'S PETITION FOR POST CONVICTION RELIEF WHICH ESTABLISHED THAT MR. SOTOMAYER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART.I, PAR.10.

A. MR. SOTOMAYER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE AND SUBPOENA WITNESSES ON HIS BEHALF.

B. MR. SOTOMAYER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS TRIAL ATTORNEY IMPROPERLY ADVISED HIM NOT TO TESTIFY ON HIS OWN BEHALF.

C. MR. SOTOMAYER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED TO CHALLENGE THE ASSERTION THAT MR. SOTOMAYER WAS FROM EL ...


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