On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 02-05-1836 and 02-07-2644.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Rodríguez.
On this appeal from the denial of post-conviction relief, defendant claims he "is entitled to a hearing on his claim that his attorney rendered ineffective assistance of counsel" because the supporting facts are not contained in the record. He points particularly to a statement of his co-defendant cousin, Julio Rodriguez, dated February 21, 2002, stating that although arrested together he "committed" the crimes "alone," that defendant "did not commit" any of the crimes with Julio, and that Julio "committed all these crimes by myself." According to Julio's statement, "I have never committed any crimes with Americo. He has never been with me when I committed a crime." Julio was a co-defendant on one of the indictments which charged four armed robberies. Defendant was indicted alone on another.
On March 5, 2003 defendant pled guilty to two counts of second-degree robbery, one count each in two indictments, as amended and to conspiracy to rob as embodied in the first indictment. The maximum sentence exposure was twenty years imprisonment with the No Early Release Act (NERA)*fn1 to apply, as the conspiracy conviction merged with the robberies, and there was "no limiting recommendation ― 20 years at 85%." Fourteen counts, including three first-degree robberies, were dismissed and the twenty-year sentence with NERA was imposed.
If the judgment were entered before the defendant could obtain an exculpatory statement of a co-defendant, he would be entitled to an evidentiary hearing to test the co-defendant's credibility, as the Fifth Amendment would have precluded access to such testimony before the co-defendant's case was disposed.
See State v Robinson, 253 N.J. Super. 346 (App. Div.), certif. denied, 130 N.J. 6 (1992). But here, Julio Rodriguez's statement is dated February 21, 2002, over a year before the guilty plea was entered, and there is no suggestion defendant was not aware of it before he entered his plea. Moreover, given the discovery defendant should have also been aware of Julio's prior incriminatory statements, making it unlikely that Julio would have had beneficial impact if he testified for defendant at a trial or if defendant obtains a new trial. Hence, this is another case in which the Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985), standard applies, and it is unlikely this extended term eligible defendant would not have taken the plea offer, with three other armed robberies facing him. See also State v. Echols, ___ N.J. ___ (March 17, 2009) (slip op. at 13-16). Accordingly, we affirm the order denying post-conviction relief.