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State v. Hernandez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 19, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LENY HERNANDEZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 04-01-0072-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Skillman and Winkelstein.

Defendant, Leny Hernandez, appeals from an August 15, 2006 order denying his petition for post-conviction relief. We affirm.

On June 27, 2003, while leaving a North Bergen Shop-Rite with a package of razor blades, defendant engaged in a physical confrontation with the security guard. With keys in his hand, defendant struck the security guard in the neck, requiring the guard to seek medical treatment, including stitches. As a result of the incident, defendant was charged with first-degree armed robbery, N.J.S.A. 2C:15-1, and four counts of aggravated assault, N.J.S.A. 2C:12-1b(1), (2), (3) and (7).

On February 23, 2004, defendant agreed to plead guilty to the armed robbery charge. In return, the State would recommend that he be treated as a second-degree offender for sentencing, and would ask for a seven-year prison term with an eighty-five percent period of parole ineligibility, subject to the terms of the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). On June 11, 2004, the court imposed a prison term consistent with the plea agreement. Defendant did not appeal from his conviction.

On September 22, 2005, defendant filed a petition for post-conviction relief. The trial court denied the petition on August 10, 2006, memorializing its decision in an order of August 15, 2006. On appeal from that order, defendant raises the following legal points for our consideration:

POINT I IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF. POINT II IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PART OF THE POST-CONVICTION RELIEF ATTORNEY TO FAIL TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM WITNESSES SUCH AS PRIOR DEFENSE COUNSEL SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM AND MAY HAVE THEN ALLOWED AN EVIDENTIARY HEARING.

We have given careful consideration to defendant's arguments in light of the record and the prevailing law. We conclude that he has failed to establish a prima facie case of ineffective assistance of counsel. He has not demonstrated either that counsel's performance was deficient or that, if it was deficient, there existed "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). His arguments to the contrary are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2).

We affirm substantially for the reasons expressed by Judge Theemling in his oral decision on August 10, 2006.

20080319

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