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State v. S.E.D.

September 29, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
S.E.D.,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment Nos. 99-06-0126 and 00-05-0131.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Defendant appeals from the October 30, 2006 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged by a Hunterdon County Grand Jury under Indictment Nos. 99-06-00126 and 00-05-00131 with having committed various criminal offenses against his estranged wife, one of which endangered the lives of his four children. Tried to a jury, defendant was convicted of three counts of third-degree burglary, N.J.S.A. 2C:18-2a(1) (Counts One and Two of Indictment No. 99-06-00126 and Count One of Indictment No. 00-05-00131); four counts of second-degree endangering the welfare of a child, one count as to each of his children, N.J.S.A. 2C:24-4a (Counts Three, Four, Five, and Six of Indictment No. 99-06-00126); third-degree arson, N.J.S.A. 2C:17-1b(1) and (2) (Count Eight of Indictment No. 99-06-00126); and second-degree aggravated arson, N.J.S.A. 2C:17-1a(2) (Count Two of Indictment No. 00-05-00131). Defendant was found not guilty on Count Seven of Indictment No. 99-06-00126, charging him with second-degree aggravated arson, N.J.S.A. 2C:17-1a(1) or (2). Because the trial facts were discussed at length in our prior opinion, State v. S.E.D., No. A-5318-01 (App. Div. Dec. 26, 2003), it is unnecessary for us to detail the evidence against defendant for these crimes.

On March 8, 2002, defendant was sentenced on Indictment 99-06-00126 as follows: on Count One to a term of five years of imprisonment; on Counts Three, Four, Five and Six to terms of ten years of imprisonment with five years of parole ineligibility; on Count Eight to a term of five years of imprisonment. Count Two was merged with Count Eight. All sentences run concurrent with each other but consecutive to the sentences imposed under Indictment 00-05-00131. On the second indictment, defendant was sentenced to a term of ten years of imprisonment on Count Two, with five years of parole ineligibility. Count One was merged with Count Two. Defendant's aggregate sentence was twenty years, ten years without parole.

On direct appeal, defendant argued:

POINT I.

THE COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN GRANTING THE STATE'S MOTION FOR JOINDER.

A. SINCE THE ISSUE OF DEFENDANT'S "MOTIVE" WAS NOT IN GENUINE DISPUTE, EVIDENCE RELATING TO THE OCTOBER 27, 1998 BURGLARY AND ARSON CHARGED IN INDICTMENT NO. 00-05-0131 WOULD NOT HAVE BEEN ADMITTED IN A TRIAL FOR THE BURGLARY, ARSON, AND ENDANGERING OFFENSES ALLEGED IN INDICTMENT NO. 99-06-0126.

B. THE DEFENDANT WAS UNFAIRLY PREJUDICED BY JOINDER.

POINT II.

THE OTHER BAD ACTS TESTIMONY WAS NOT ADMISSIBLE UNDER N.J.R.E. 404(b) BECAUSE THE DEFENDANT'S MOTIVE WAS NOT AN ISSUE GENUINELY IN DISPUTE.

POINT III.

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT THE DEFENDANT'S GUILT ON THE CRIMES CHARGED IN THE INDICTMENTS MUST BE BASED ON EVIDENCE INDEPENDENT OF THE OTHER CRIMES TESTIMONY OF THE WITNESSES CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

POINT IV.

THE COURT'S CHARGE WAS PREJUDICIALLY DEFECTIVE BECAUSE IT FAILED TO PROVIDE ANY GUIDANCE TO THE JURY ON HOW IT SHOULD ASSESS THE CREDIBILITY OF MICHAEL FONTANEZ AND CHRISTOPHER MCKINNEY. (NOT RAISED BELOW).

POINT V.

THE TRIAL COURT'S RESPONSE TO THE DISCOVERY VIOLATIONS COMMITTED BY THE STATE CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

A. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A MISTRIAL BECAUSE THE STATE'S DISCOVERY VIOLATIONS RESULTED IN THE LOSS OF THE EXCULPATORY VIDEOTAPED STATEMENT OF [Jer.D.].

B. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S REQUEST FOR AN ADJOURNMENT.

C. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE STATE VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO HAVE ALL THE EVIDENCE PRESERVED. (NOT RAISED BELOW).

POINT VI.

THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

A. THE PROSECUTOR IMPROPERLY URGED THE JURY TO CONSIDER THE DEFENDANT'S DECISION TO TESTIFY AS EVIDENCE OF HIS GUILT.

B. THE PROSECUTOR IMPROPERLY ARGUED THAT THE JURY SHOULD NOT "TRUST" THE DEFENDANT WITH A VERDICT OF NOT GUILTY.

POINT VII.

IMPOSITION OF THE AGGREGATE TWENTY (20) YEAR SENTENCE WITH TEN (10) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE SENTENCING COURT'S DISCRETION.

A. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO TERMS OF IMPRISONMENT IN EXCESS OF THE PRESUMPTIVE TERMS FOR SECOND AND THIRD DEGREE CRIMES.

B. THE COURT ABUSED ITS DISCRETION BY IMPOSING PERIODS OF PAROLE INELIGIBILITY.

C. THE COURT ABUSED ITS DISCRETION BY RUNNING THE SENTENCES IMPOSED ON INDICTMENT NO. 99-06-0126 AND INDICTMENT NO. 00-05-0131 CONSECUTIVE TO EACH OTHER.

We affirmed the convictions and sentences imposed. (slip op. at 5). On March 16, 2004, the Supreme Court denied defendant's petition for certification. State v. S.E.D., 179 N.J. 372 (2004). On September 20, 2005, defendant filed a pro se petition for PCR, raising the following issues:

POINT I.

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II.

DEFENDANT'S SENTENCE WAS ILLEGAL BECAUSE IT VIOLATED THE UNITED STATES SUPREME COURT DECISIONS IN BLAKELY V. WASHINGTON, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) AND APPPRENDI V. NEW JERSEY, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).

On June 16, 2006, assigned counsel filed an amended petition, explaining that defendant's ineffective assistance of counsel claim was based on trial counsel's failure to: 1) effectively impeach the credibility of the State's biased witnesses; and 2) call witnesses who would have testified in support of the defense. Oral argument was conducted on defendant's petition on October 18, 2006, with the PCR court reserving decision. On October 30, 2006, the PCR court entered an order denying defendant's petition for PCR, supported by a twenty-two page written decision.

In this appeal, defendant argues:

POINT I.

DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF INADEQUATE PREPARATION AND INEFFECTIVE REPRESENTATION BY HIS TRIAL COUNSEL.

A. TRIAL COUNSEL'S FAILURE TO PREPARE FOR OR CONDUCT A MEANINGFUL CROSS[-]EXAMINATION OF TARA AND AUDREY RAUSCH VIOLATED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

B. TRIAL COUNSEL'S FAILURE TO CALL DONALD POWELL AS A WITNESS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

C. TRIAL COUNSEL'S FAILURE TO RETAIN AN ARSON EXPERT TO INVESTIGATE THE STATE'S CLAIMS AND TESTIFY AS A WITNESS VIIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

D. TRIAL COUNSEL'S FAILURE TO OBTAIN THE VIDEOTAPE IN WHICH DEFENDANT'S SON CONFESSED TO STARTING THE FIRE VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

E. TRIAL COUNSEL'S FAILURE TO PREPARE FOR OR CONDUCT A MEANINGFUL CROSS-EXAMINATION OF MICHAEL FONTANEZ VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

F. TRIAL COUNSEL'S LACK OF PREPARATION IN FAILING TO OBTAIN IMPEACHMENT MATERIAL AS TO KRISTOFER MCKENNEY AND CHRISTOPHER VOLEKAS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

G. TRIAL COUNSEL'S FAILURE TO PRESENT WITNESSES TO TESTIFY ON DEFENDANT'S BEHALF AT TRIAL VIOLATED DEFENDANT'S RIGHT TO ...


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