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State v. Tapia

January 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDUARDO TAPIA, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGELIO TAPIA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2491.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Before Judges Reisner and Alvarez.

In these two appeals, which we have consolidated for purposes of this opinion, defendants Eduardo Tapia and Rogelio Tapia appeal from two January 26, 2007 orders denying their petitions for post-conviction relief (PCR). We affirm.

I.

Both defendants were convicted by a jury, based on the same incident involving the kidnapping of Juan Cordero. According to the State's evidence, Cordero had an affair with Eduardo Tapia's live-in girlfriend, Leticia Hernandez, as a result of which she became pregnant and had an abortion. Thereafter, defendants' sister lured Cordero to a parking lot, where the two defendants and several co-defendants forced Cordero into an SUV at knife-point, tied him up, brought him to Eduardo's house and threatened him. Several independent witnesses observed the kidnapping and called 9-1-1. The police traced the registration of a car defendants had left at the kidnapping scene, and discovered Eduardo's address. Cordero was saved from further harm when the police arrived at Eduardo's house and freed him.

Eduardo Tapia was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1, and possession of a prohibited weapon, N.J.S.A. 2C:39-3e, and was sentenced to an aggregate sixteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Rogelio Tapia was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1, and related weapons offenses, and received an aggregate sentence of fifteen years subject to NERA. Both men were sentenced to serve a five-year period of parole supervision following their release from prison. We affirmed both convictions on appeal. State v. Tapia, Docket Nos. A-1021-03 and A-2911-03 (App. Div. June 9, 2005), certif. denied, 185 N.J. 295 (2005). Both defendants filed PCR petitions.

In an oral opinion placed on the record on January 26, 2007, Judge Chaiet rejected defendants' PCR claims that trial counsel was ineffective for failing to object to comments by the prosecutor in summation. The judge found the remarks were not misconduct but fair comment on the evidence. Rejecting defendants' further contentions, the judge also found that the prosecutor did not misstate the law of conspiracy and that in any event the trial court's extensive and correct jury charge would have cured any misstatement. Judge Chaiet also concluded that trial counsel was not ineffective in failing to call a co-defendant as a witness, since her potential testimony would have been cumulative and suspect.

Judge Chaiet rejected defendants' claims that the sentences were excessive, noting that the range for kidnapping was fifteen to thirty years, and that he had sentenced Eduardo to one year above the minimum sentence and had given Rogelio the minimum possible sentence. He found no merit in defendants' argument that the five-year periods of parole supervision should be combined with the prison sentences for purposes of determining whether the sentences violated the principles set forth in State v. Natale, 184 N.J. 458 (2005).

II.

On appeal, defendant Eduardo Tapia raises the following point for our consideration:

POINT I: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL AND ...


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