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State v. Delgado

February 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL DELGADO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-11-3440.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2009

Before Judges Axelrad, Lihotz and Messano.

Defendant Daniel Delgado appeals from a Law Division order denying his motion for post-conviction relief (PCR). We affirm.

Following a retrial*fn1, a jury convicted defendant of the murder of Daniel Cortez, N.J.S.A. 2C:11-3(a)(1)(2) (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a handgun with purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a) (count three). The trial court merged count three into count one and sentenced defendant to a forty-year prison term with a thirty-year period of parole ineligibility on count one, and a concurrent five-year term on count two.

On direct appeal, we affirmed defendant's conviction and sentence. State v. Delgado, No. A-379-01 (App. Div. July 7, 2005). After granting defendant's petition for certification, the Supreme Court affirmed our determination on July 31, 2006. State v. Delgado, 188 N.J. 48 (2006).

Defendant filed his PCR application asserting due process violations resulted from the prosecutor's alleged presentation of false witness testimony. Additionally, defendant argued trial counsel was ineffective based upon his alleged failure to present the testimony of the initial investigating detective who attempted to secure a witness's identification of the van driven by the perpetrator. The PCR judge concluded the application was procedurally barred and substantively without merit. The PCR court denied defendant's petition without an evidentiary hearing.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE WAS DENIED DUE PROCESS OF LAW AT TRIAL BY VIRTUE OF THE PROSECUTOR'S KNOWING PRESENTATION OF FALSE TESTIMONY FROM TWO OF HER WITNESSES AS WELL AS HER FAILURE TO CORRECT THEIR TESTIMONY AFTER IT WAS ELICITED.

A. FACTUAL INTRODUCTION

B. THE DEFENDANT IS ENTITLED TO A NEW TRIAL BY VIRTUE OF THE PROSECUTOR'S CONDUCT WITH RESPECT TO THE TESTIMONY OF AL BUCCI AND RICHARD MUNOZ, AND THE TRIAL COURT ERRED ...


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