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State v. Deleon

February 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NELSON ALVARADO DELEON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 99-04-1262.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2009

Before Judges Stern, Waugh and Newman.

Defendant Nelson Alvarado DeLeon appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant served as a lookout while three others robbed, shot, and killed one Camden drug dealer and shot and seriously injured his associate. Defendant was tried before a jury, which found him guilty of thirteen charges, including first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); and first-degree felony murder, N.J.S.A. 2C:11-3(a)(3).

Defendant received consecutive sentences resulting in an aggregate term of fifty-three years imprisonment, with forty-four years, five months, and eighteen days parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant argued on his direct appeal that he had ineffective assistance of counsel, and that the trial judge erroneously charged accomplice liability, imposed an excessive sentence, and failed to submit NERA eligibility to the jury. We affirmed, but remanded to correct the sentence without changing the aggregate term. State v. Nelson Alvarado-DeLeon, No. A-6821-00T4 (App. Div. Sept. 29, 2003).

Defendant was convicted principally on a theory of accomplice liability. The evidence presented against him included his tape-recorded confession, a transcribed copy of which, translated from Spanish to English, was provided to assist the jury during its deliberations.

In his confession, defendant admitted selling drugs for the decedent, who was a relatively large-scale distributor of cocaine. The cocaine came from Columbians in New York. A dispute with the Columbians developed over the adulteration of approximately ten kilograms of cocaine with baking soda. According to defendant, the decedent and his associate returned the adulterated drugs in lieu of cash owed the Columbians. The Columbians hired several hit men, who were to recover the cash and kill both drug dealers. Defendant admitted that one of the hit men asked him to join them and "watch his back." Defendant agreed, but stayed outside and acted as a lookout.

The men entered the decedent's house, held members of his family hostage, killed decedent, and seriously injured his associate. Upon completion of the crime, the men went to defendant's apartment with a brown paper bag containing $19,000 in cash. From that money, they gave defendant $800.

In his direct appeal, defendant alleged that his trial counsel provided ineffective assistance by failing: (1) to call any witnesses; (2) to meet with defendant sufficiently before trial to prepare properly; (3) to cross-examine many State witnesses and, when he did so, performing a woefully inadequate examination; and (4) to object to the jury charge concerning accomplice liability. We determined that none of his allegations met the two-prong test for determining ineffective assistance, which was enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 51-53 (1987).

The Supreme Court denied defendant's petition for certification. State v. Alvarado-DeLeon, 180 N.J. 358 (2004).

Defendant filed a pro se PCR petition. He was assigned counsel, who supplemented the briefing and raised additional issues. On April 20, 2007, the PCR judge denied defendant's request for post-conviction relief, finding that defendant had failed to establish that he was denied the effective assistance of trial or appellate counsel. Defendant appeals that determination.

II.

Defendant raises the following issues with respect to the denial of his PCR petition:

POINT I- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...


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