On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 94-04-00546.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and King.
This is an appeal from a denial of an application for post-conviction relief. Defendant makes this contention in Point I, his single point on this application. We repeat this point in defendant's own words:
DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED DUE TO HIS HAVING BEEN TRIED WITHOUT INDICTMENT OF GRAND JURY. THE STATE PROSECUTOR AND TRIAL COURT MADE AN AMENDMENT OF THE INITIAL (10 COUNT) INDICTMENT TO FABRICATE DEFECTS TO DEPRIVE DEFENDANT OF CRITICAL ELEMENT TO HIS DEFENSE, WHICH PREJUDICED HIS ABILITY TO DEFEND HIMSELF AT TRIAL! OVER HIS OBJECTION WHICH VIOLATED GRAND JURY CLAUSE, AND HIS RIGHT TO A FAIR TRIAL BY IMPARTIAL JURY AND TO DUE PROCESS. U.S. CONSTITUTION AMENDMENT 5, 6 & 14; N.J. CONSTITUTION (1947) ART. I PARA. 8, 9, & 10.
This is the procedural history of the case. This Middlesex County Indictment No. 546-4-94 was filed on April 13, 1994. In ten counts, the indictment charged defendant with kidnapping, N.J.S.A. 2C:13-1(b); aggravated sexual assault, N.J.S.A. 2C:14-2(a); sexual assault, N.J.S.A. 2C:14-2(c); terroristic threats, N.J.S.A. 2C:12-3(b); criminal restraint, N.J.S.A. 2C:13-2; endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and contempt, N.J.S.A. 2C:29-9.
Defendant was tried before Judge Hoffman and a jury in February and March, 1996. On the State's motion, the judge dismissed Count Ten on February 22, 1996 and on defendant's motion, the judge dismissed Counts Five and Nine on February 28, 1996. The jury convicted defendant on all the remaining charges. On March 7, 1996 defendant filed an application for a new trial. Judge Hoffman denied this application on July 8, 1996 and sentenced defendant that same day.
The judge merged Counts Two, Three, and Six into Count One, and imposed a twenty-five year term, all of which must be served. On Count Seven, the judge imposed a consecutive ten-year term.
Defendant filed his notice of appeal with this court on August 26, 1996. We affirmed the conviction on January 5, 1998 (Docket No. A-7683-95T4). The Supreme Court denied certification on June 30, 1998.
Defendant filed an application for post-conviction relief on March 17, 1999. This petition was supported by a brief from defendant and a brief from counsel. The application was heard and denied by Judge Hoffman on May 15, 2000 and an order memorializing the decision was filed on June 6, 2000.
Defendant then filed his notice of appeal to this court from that decision on July 20, 2000; this court affirmed the denial of post-conviction relief on October 29, 2002 (Docket No. A-6184-99T4). Our Supreme Court denied certification on April 23, 2003. An untimely filed petition for a writ of habeas corpus was denied by Federal Judge Hochberg on November 20, 2005.
On a date not clear from the record, but in mid-April 2007, defendant filed this motion for post-conviction relief. This application was denied by letter of April 23, 2007 by Judge Nieves. That same day, the judge filed ...