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State v. Abruzia

August 11, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VINCENT ABRUZIA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, 96-11-3865.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2008

Before Judges Graves and Alvarez.

Defendant Vincent Abruzia appeals from an order entered on March 30, 2007, denying his petition for post-conviction relief (PCR). We affirm.

On December 10, 1999, a jury convicted defendant of second- degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count two); first- degree robbery, N.J.S.A. 2C:15-1 (counts three through six); second-degree reckless manslaughter as a lesser included offense of murder, N.J.S.A. 2C:11-4(b)(1) (count seven); felony murder, N.J.S.A. 2C:11-3(a)(3) (count eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count nine and thirteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten); and second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1 (count eleven). Defendant was acquitted on count twelve, aggravated assault, and count fourteen, possession of a weapon for an unlawful purpose. Counts one through ten covered events which took place on April 20, 1996, while counts eleven through fourteen addressed a prior incident on April 12, 1996.

At sentencing on March 7, 2000, the court imposed an aggregate term of life imprisonment plus fifteen years, with thirty-five years of parole ineligibility. Defendant's convictions and sentence were affirmed on direct appeal and certification was denied. State v. Abruzia, No. A-2324-02 (App. Div. Feb. 20), certif. denied, 180 N.J. 357 (2004). The facts established at defendant's trial were fully set forth in our unpublished opinion and need not be repeated here. In affirming defendant's judgment of conviction we stated:

[T]here is no question that defendant was a drug dealer who was willing to defend his drug turf at any cost. The consequences for defendant are that he is removed from society for an extensive period of time because he has more than demonstrated he does not feel bound by the rules that govern society.

[Ibid.]

Although defendant's PCR petition was not filed in the Law Division until March 10, 2006, it is dated July 12, 2004, and it was received by the Office of the Public Defender on September 9, 2004. The record also confirms the Public Defender's Office submitted defendant's petition to the Essex County Criminal Division Manager's Office for filing on September 29, 2004, but for some unexplained reason the petition was not filed at that time. In any event, because the State concedes "the defendant made all reasonable efforts to timely file his petition," and because the delay in the filing of defendant's petition is attributable to circumstances beyond his control, we are satisfied his petition should not be time-barred by Rule 3:22- 12, which establishes a five-year time limit for petitioning for PCR.

In a brief submitted to the PCR court on October 25, 2006, defendant's attorney advanced the following arguments.

POINT I

FOR REASONS SPECIFICALLY SET FORTH IN THE FOLLOWING POINTS, DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ...


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