On appeal from the Superior Court of New Jersey, Law Division, Union County, 91-12-1979.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Lintner and Alvarez.
On December 20, 1991, a Union County Grand Jury returned Indictment No. 91-12-1979, charging defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) (Count One); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two); two counts of first- degree attempted murder, N.J.S.A. 2C:11-3a(1) or (2) (Counts Three and Four); second-degree possession of a weapon with intent to use it against another, N.J.S.A. 2C:39-4a (Count Five); third-degree possession of a weapon, N.J.S.A. 2C:39-5b (Count Six); and second-degree attempted aggravated arson, N.J.S.A. 2C:17-1a (Count Seven).*fn1
On October 20, 1993, following a Miranda*fn2 hearing, Judge Barisonek found that defendant's oral and written statements to the police were admissible. Thereafter, a jury returned a verdict, finding defendant guilty of first-degree murder of Roxanne Hollingshead, first-degree attempted murder of Monique Washington and Francisco Gonzales, second-degree possession of a weapon for an unlawful purpose, and third-degree possession of a weapon. He was acquitted on Counts Two and Seven. On February 23, 1994, defendant was sentenced to an aggregate term of seventy years imprisonment with a forty-year parole disqualifier.
We affirmed defendant's sentence and conviction on April 18, 1997, rejecting defendant's contention that the State failed to prove that he waived his right to remain silent regarding his oral statement to the police, and concluding that his "incriminatory statements were properly admitted into evidence" and the consecutive sentence imposed was neither excessive nor violative of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Defendant's petition for certification was denied. State v. Negron, 151 N.J. 468 (1997).
Defendant's first petition for PCR, filed on October 22, 1997, was denied by Judge Barisonek without an evidential hearing on May 11, 1999. We affirmed that denial on December 7, 2000. Defendant's petition for certification was denied. State v. Negron, 167 N.J. 637 (2001).*fn3 In this, his second PCR application filed on November 1, 2005, defendant asserted that Judge Barisonek committed plain error at trial when he failed to suppress oral responses to interrogation.*fn4 Defendant contended in his PCR application that he was entitled to relief under Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed. 2d 643 (2004), notwithstanding our prior decision on direct appeal, affirming Judge Barisonek's finding that defendant was read his Miranda rights prior to defendant's agreement to orally answer questions.
We need not reiterate the facts; they were sufficiently recited in our April 18, 1997, per curiam opinion on direct appeal. At oral argument on defendant's PCR application, Judge Barisonek pointed out that the facts in Seibert are distinguishable because in Seibert the defendant was not informed of her Miranda rights until after she confessed following thirty to forty minutes of uninterrupted interrogation. Seibert, supra, 542 U.S. at 604-05, 124 S.Ct. at 2605-06, 159 L.Ed. 2d at 650. Judge Barisonek explained that defendant was read his Miranda rights prior to being interrogated. The judge then found that defendant's PCR application was procedurally barred under the five-year time bar, R. 3:22-12, and because he raised substantially the same argument in his direct appeal, R. 3:22-5.
Defendant now raises the following contentions on appeal:
I. THE TRIAL COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING.
II. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S POST-CONVICTION RELIEF PETITION.
In a supplemental brief, defendant asserts:
I. THE TRIAL COURT ERRED BY INVOKING A ...