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State v. Soriano

June 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NEFTALI SORIANO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,*fn1 Indictment No. 98-08-1153.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 23, 2008

Before Judges Sapp-Peterson and King.

Defendant, Neftali Soriano, appeals from the March 8, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

On August 20, 1998, a grand jury indicted defendant along with co-defendant, Andrew R. Majkut, with second-degree burglary, N.J.S.A. 2C:18-2 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (Count Three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (Count Four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Seven); and third-degree hindering one's own apprehension, N.J.S.A. 2C:29-3(b) (Count Eight). The charges stem from an incident that occurred during the early morning hours of July 4, 1998. According to the evidence presented at trial, defendant and his co-defendant broke into the home of then sixty-six-year-old June Lubinski, who was related to Majkut by marriage. Defendants assaulted her, demanded money, tied her up and then ransacked her home. Defendant testified at trial and acknowledged his involvement in the incident but denied that he assaulted the victim as she claimed he had done. During trial, the court dismissed the kidnapping charge.*fn2 The jury acquitted defendant of terroristic threats but convicted defendant of the remaining counts in the indictment.

On September 27, 1999, defendant was sentenced to concurrent custodial sentences of seven years for burglary, four years for aggravated assault, eighteen months for unlawful possession of a weapon, and four years for possession of a weapon for an unlawful purpose. On the first-degree robbery count, the court imposed a fifteen-year custodial sentence to be served consecutive to the other sentences. We upheld defendant's conviction on appeal, but remanded the matter for re-sentencing on the consecutive portion of defendant's sentence. State v. Soriano, No. A-1516-00T4 (App. Div. Sept. 26, 2002) (slip op. at 8). Upon re-sentencing, the court imposed concurrent terms on all of the offenses, resulting in an aggregate custodial sentence of fifteen years with a twelve-year, nine-month and three-day period of parole ineligibility.

On February 3, 2005, defendant filed a pro se verified petition for PCR and later, through counsel, filed an amended petition. The essence of defendant's petition focuses upon a claim of ineffective assistance of trial counsel. Specifically, defendant contends trial counsel failed to object to testimony that defendant used aliases, trial counsel elicited testimony that resulted in the jury learning that defendant had illegally entered the country and had been involved in a domestic violence incident, and also elicited testimony from the investigating officer that defendants were both blaming each other for striking the victim. In denying post-conviction relief, the court found the petition was barred by the five-year time period set forth in Rule 3:22-12 and that defendant had failed to demonstrate excusable neglect. In addition, the court concluded that defendant failed to demonstrate he was entitled to relief pursuant to Rule 1:1-2, which permits the court to relax the time limitations of Rule 3:22-12 "if adherence to it would result in an injustice." R. 1:1-2. The present appeal followed.

Defendant raises the following points for our consideration:

POINT I

DEFENDANT'S PCR PETITION WAS NOT TIME-BARRED.

POINT II

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO THE ...


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