On appeal from Superior Court of New Jersey, Law Division, Hudson County, 04-02-0879-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Collester.
Defendant appeals from the denial of post-conviction relief (PCR) by the hearing judge and presents the following arguments on appeal:
POINT I -- DEFENDANT'S DESIGNATED COUNSEL WAS INEFFECTIVE IN FAILING TO INSIST THAT THE DEFENDANT BE PRODUCED FOR THE HEARING ON THE PETITION FOR POST-CONVICTION RELIEF.
POINT II -- THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION WITHOUT A PLENARY HEARING.
In the early hours of August 5, 2001, defendant shot and killed fifteen-year-old Avery Matthews at the conclusion of an argument over money. The incident took place outside the Duncan Avenue Projects in Jersey City and was observed by witnesses in the area. Defendant pulled out two guns, put them to Avery's face, and stated, "I'll shoot you in the face if you say anything else." Defendant placed the guns on the top of a car and began to physically assault Avery. After they were separated, defendant retrieved a gun and shot Avery while he was attempting to flee. The autopsy report revealed that Avery died from a single gunshot wound to the right-side of the chest area.
Defendant was indicted for murder along with related weapons offenses, and on May 7, 2003, he entered a plea of guilty to the amended charge of aggravated manslaughter. He was sentenced on July 25, 2003 to a term of eighteen years in New Jersey State Prison with eighty-five percent of his sentence to be served pursuant to the No Early Release Act (NERA). On January 29, 2004, we affirmed defendant's appeal of his custodial sentence, and on June 29, 2004, the Supreme Court denied certification.
After consideration of the record and the applicable law, we find that the arguments made by defendant are without sufficient merit to warrant discussion in a written opinion. Rule 2:ll-3(e)(2). We note only the following. A defendant is entitled to be present at a PCR hearing only when oral testimony is adduced on a material issue within the defendant's personal knowledge. In other circumstances, the presence of a defendant at the hearing is within the discretion of the trial judge. State v. Dishon, 297 N.J. Super. 254 (App. Div.), certif. denied, 149 N.J. 144 (1997). Here defendant does not advance the contention that his presence at the hearing would make any difference in the outcome. Therefore, we find no abuse of discretion by the trial judge.
Defendant's arguments that he was entitled to an evidentiary hearing is similarly without any basis in law or fact. A defendant must present a prima facie case in support of his application before the PCR trial court is required to hold an evidentiary hearing. State v. Preciose, 129 N.J. 451, 459 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). In this instance, defendant did not meet that burden.
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