On appeal from Superior Court of New Jersey, Law Division, Cape May County, Ind. No. 01-04-0171 and 01-06-0288.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Chambers.
Defendant William P. DeLange appeals from the denial of his motion for post-conviction relief. We affirm substantially for the reasons set forth by the trial judge.
In 2001, defendant was indicted under two separate indictments on drug charges. The first indictment arose from the execution of a search warrant that took place on February 9, 2001. The second indictment arose from the execution of a search warrant that took place on April 28, 2001. Count two of each indictment charged defendant with possession of a controlled dangerous substance with intent to distribute within 500 feet of public property in violation of N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a)(1).
Pursuant to a plea agreement on both indictments, defendant pled guilty to count two of each indictment on June 3, 2002. In the plea agreement, the prosecutor agreed to recommend a sentence of five years with twenty-four months of parole ineligibility on count two of the first indictment and a sentence of seven years with thirty-six months of parole ineligibility on count two of the second indictment. The plea agreement provided that the prosecutor would recommend that the sentences be consecutive.
Although he was represented by counsel at that time, defendant made a pro se motion prior to sentencing to withdraw his guilty pleas. The motion was denied on July 12, 2002, the day of sentencing. Defendant was then sentenced pursuant to the terms of the plea agreement, and received an aggregate sentence of twelve years with five years of parole ineligibility. On direct appeal, defendant argued that the sentence was excessive. The sentence was upheld by the Appellate Division on May 19, 2005.
On July 17, 2006, defendant filed a pro se petition for post-conviction relief on the basis that the "arresting officer lied to judge to get [a] no knock warrant" and the "[c]onfession was under agreement to 'go home if confessed and charged with crime if I didn't.'" Defense counsel also filed a petition for post-conviction relief on December 5, 2006, and submitted a letter dated December 4, 2006, in support of the post-conviction relief application. The defense contended that trial counsel was ineffective for numerous reasons, including failing to adequately discuss the case and the plea with defendant. Defendant also contended that defense counsel should have moved for disclosure of the identity of the confidential informant on the basis that the confidential informant could have obtained the drugs from an apartment other than defendant's. Defendant maintained that he was not provided with information on the reliability of the confidential informant. He noted that the reliability of the informants used by the head of the task force involved in the searches had turned out to be problematic in other cases. He raised various arguments regarding the sentence, including the contention that the sentences should have been concurrent rather than consecutive and that defense counsel failed to adequately address the mitigating and aggravating factors.
Defendant also sought to have the trial judge who took the plea and sentenced him recuse herself from hearing the post-conviction relief application, arguing that she was biased against him. He contended that she called him "guilty" and "delusional" and told him that "if he did not take the plea, he would receive twenty years in prison, ten without parole,"*fn1 although he acknowledged that such remarks were not recorded on the record. He also complained that the trial judge took the plea of his co-defendant and that she refused to ask his attorney to visit him in prison as opposed to talking to him in court.
On February 7, 2007, in an oral decision placed on the record, the trial judge denied the application to recuse, noting that she does not make off the record comments to defendants. She then carefully reviewed the issues raised in the post-conviction relief applications and denied defendant's request for post-conviction relief.
In this appeal, defendant raises the following point: "[t]he Court erred in denying the defendant's petition for post-conviction relief." The thrust of the argument as explained in defendant's appellate brief is that the trial judge should have held an evidentiary hearing on defendant's ineffective assistance of counsel claims and that the trial judge should have recused herself.
After a careful review of the record, including the papers submitted to the court below and the arguments submitted in the appellate papers, we affirm substantially for the reasons set forth in the ...