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State v. Justiniano

April 8, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DON JUSTINIANO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-12-2465.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2008

Before Judges Carchman and Simonelli.

Following an indictment by an Atlantic County Grand Jury for first-degree murder, N.J.S.A. 2C:11-3a(1)(2); first-degree conspiracy, N.J.S.A. 2C:5-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, defendant on April 30, 2004, entered into a plea agreement resulting in the entry of a plea of guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, with a recommended sentence of incarceration not to exceed twenty years. Thereafter, on June 4, 2004, Judge Garofolo sentenced defendant to a jail term of twenty years together with a concurrent term of four years on unrelated drug offenses. The other counts of the indictment were dismissed, and the judge imposed the statutorily mandated fines, fees and costs. Defendant did not appeal the sentence.

In May 2005, defendant filed a pro se motion to withdraw his plea of guilty asserting that he received ineffective assistance of counsel. The judge dismissed the motion advising defendant that the "appropriate vehicle for the relief you seek is a Petition for Post Conviction Relief." On February 6, 2006, defendant filed a pro se petition for Post-Conviction Relief (PCR). That application was denied, and defendant appeals. We now affirm.

The underlying offense arose out of the shooting of Mikell Manuel on March 23, 2000, in Atlantic City. On that date, defendant was observed in an argument with the victim.

Defendant had a handgun in his possession, and according to defendant's statement at the time of the plea, "[w]e had an argument [and] I shot him in the butt." According to various reports in the record, other witnesses corroborated defendant's version of the events at the scene. In support of his petition, defendant also referred to a statement taken three years after the murder from a fellow prisoner, Loquon Allen, who indicated that he was a witness, and after the victim fired two shots, he removed a handgun from the victim's hand and disposed of it in the bay near Atlantic City or Pleasantville.

In his PCR petition, defendant alleged:

POINT ONE:

ATLANTIC COUNTY ASSISTANT PROSECUTOR CREATED PROSECUTORIAL MISCONDUCT BY WILLFULLY, DELIBERATELY AND MALICIOUSLY WITHHOLDING EXCULPATORY EVIDENCE VIOLAT[ING] [TH]E DEFENDANT'S CONSTITUTIONAL RIGHTS STATE AND FEDERALLY.

POINT TWO:

DEFENSE ATTORNEY, JOSEPH CORBI WAS INEFFECTIVE IN HIS REPRESENTATION OF DEFENDANT CREATING A SIX (6) AMENDMENT UNITED STATES CONSTITUTIONAL VIOLATION AND IN VIOLATING RULES OF PROFESSIONAL CONDUCT 1.1 AND 8.4 (a), (b), (c) AND (d) PERMITTING THE DEFENDANT TO ENTER A PLEA OF GUILTY TO A CRIME NOT SUPPORTED BY FOR[E]NSIC EVIDENCE AS FACTS ...


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