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State v. Turcio

August 4, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE TURCIO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-02-0221.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 22, 2008

Before Judges Lintner and Graves.

Defendant Jose Turcio appeals from an order entered on April 10, 2006, denying his petition for post-conviction relief (PCR). We affirm.

On September 19, 2000, a jury convicted defendant of the felony murder of Peter Russo, N.J.S.A. 2C:11-3(a)(3); the attempted murder of John Bodnar, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1);*fn1 first-degree armed robbery of Bodnar's Liquor Store, N.J.S.A. 2C:15-1; and second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a). At sentencing on June 22, 2001, the trial judge stated:

In the final analysis this defendant participated in a calculated armed robbery which was carried out in a cruel and violent manner. The crime resulted in the death of an innocent young man, serious harm of a psychological nature to another victim and has obviously also caused permanent damage to the lives and the families of the victims. Despite the overwhelming evidence of his guilt this defendant has maintained his innocence even today through an alibi that the jury has clearly rejected.

Following appropriate mergers, defendant was sentenced to life imprisonment subject to a thirty-year period of parole ineligibility on the murder conviction. On the attempted murder conviction the court imposed a consecutive fifteen-year term of imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43- 7.2.

On appeal, defendant advances the following argument:

POINT I

THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION, BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE THE DEFENDANT'S TRIAL ATTORNEY COMMITTED SERIOUS ERRORS BY FAILING TO PRESENT EVIDENCE THAT THE LINE UP IDENTIFICATION WAS TAINTED AND UNRELIABLE AND BY FAILING TO PRESENT SEVERAL ALIBI WITNESSES.

After considering the record and briefs in light of the applicable law, we are satisfied defendant's arguments do not warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Melvin L. Gelade in his oral decision on March 29, 2006, with only the following comments.

On defendant's direct appeal, we summarized the facts of the case as follows:

On February 14, 1998, at approximately 9:15 p.m., defendant and an unidentified person entered Bodnar's [L]iquor [S]tore in New Brunswick armed with handguns, demanding money. Defendant, the smaller of the two, carried a silver revolver while the unidentified perpetrator had a black automatic. The owner, John Bodnar, and employees Charles Mack, Joseph Maselli, and Peter Russo, were working at the store that evening. Also present was Bodnar's friend, Nick Steiner. Defendant approached Steiner and either struck him on the head or pushed him off the chair. Bodnar heard the commotion from his office and saw someone with a gun. He called 911 and retrieved his gun from his desk, at which time defendant partially entered the office and pointed his gun at Bodnar. Bodnar's gun jammed and defendant began firing, hitting Bodnar's ...


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