On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-06-1818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Skillman and Graves.
The trial court found defendant Jerry Ambroselli guilty after a bench trial of third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1). At sentencing on April 14, 2000, defense counsel noted that defendant had been abusing drugs for a number of years, and he asked the court to impose a sentence of probation with county jail time as a condition of probation. On the other hand, because this was defendant's eleventh indictable conviction, the State asked the court to impose a five-year prison term with a period of parole ineligibility. The court sentenced defendant to a five-year term of imprisonment and imposed the statutorily mandated penalties, fees, and assessments. On appeal, we affirmed defendant's conviction and his sentence. State v. Ambroselli, No. A-6008-99T4 (App. Div. Jan. 29, 2002), certif. denied, 174 N.J. 40 (2002).
In April 2003, defendant filed a pro se petition for post-conviction relief (PCR), which was subsequently amended. In his amended petition, defendant alleged he was denied the effective assistance of counsel because trial counsel was not prepared to try the case, and his attorney never explained to him that he had a right to a jury trial. In addition, defendant claimed the trial judge never asked him whether he was knowingly and voluntarily waiving his right to a jury trial.
In denying defendant's petition, the PCR court noted that defendant and his attorney had both signed a trial memorandum stating "[d]efendant requests a non jury trial and expressly waives his right to a jury trial." In addition, the PCR judge read from a transcript of the court proceedings on February 23, 2000, which contained the following colloquy between the trial court and defendant:
THE COURT: Do you understand further, sir, that you have a constitutional right to a jury trial? In other words, we can select a jury and begin [tomorrow] and a jury of your peers can decide whether you are guilty or not.
You know you do have this constitutional right?
THE COURT: You understand further you have a right to waive or give up that right and to proceed with a non-jury trial?
THE COURT: What's your pleasure? Which of the two ...