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State v. N.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
N.C., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey Chancery Division, Family Part, Ocean County, Docket No. FJ-15-146-00C and FJ-15-649-00C.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2009

Before Judges Winkelstein and Fuentes.

Defendant N.C. appeals from the order of the Law Division denying his post conviction relief (PCR) petition. We affirm. Defendant was born on November 5, 1981. In 1999, he was charged with committing certain acts that, if committed by an adult, would have constituted the crimes of sexual assault, N.J.S.A. 2C:14-2b, aggravated sexual assault, N.J.S.A. 2C:14-2a and endangering the welfare of a child, N.J.S.A. 2C:24-4a. These acts allegedly occurred on various dates between November 1997 and August 1998, when defendant was under the age of eighteen.

The matter came before the Family Part in November 2000 where, following a bench trial, defendant was adjudicated delinquent for sexual assault and endangering the welfare of a child. The court's disposition was a three-year term of probation, subject to certain conditions, including that he register as a sex offender under N.J.S.A. 2C:7-1 to -21. We affirmed his conviction and disposition on direct appeal. State v. N.C., No. A-4663-00 (App. Div. Nov. 21, 2002) (slip op. at 3).

On July 6, 2004, the Office of the Public Defender, Post- Conviction Relief Unit, sent a letter to the Ocean County Criminal Case Management Office enclosing "one copy of defendant's petition for post-conviction relief." The Deputy Public Defender who authored the letter concluded the correspondence as follows: "Please file this petition and return a copy stamped 'filed' to this office along with a copy of approved indigency determination." The record made available to us shows no further action taken on this PCR petition. By letter dated November 12, 2007, defendant, this time represented by private counsel, transmitted to the court the PCR petition under review here. This petition alleged ineffective assistance of trial counsel as a basis for relief. By order dated March 7, 2008, Judge Citta denied the petition as time- barred under R. 3:22-12(a).

In a memorandum of opinion attached to the order, Judge Citta explained that, absent a showing of exceptional circumstances, a PCR petition filed more than five years from the date of judgment is barred under R. 3:22-12(a). This petition was filed on November 20, 2007, more than five years from February 14, 2001, the date the adjudication of delinquency was entered by Judge Villano. In this light, Judge Citta concluded as follows:

A petitioner seeking to overcome the time-bar must establish by a preponderance of the evidence that he deserves the requested relief. State v. Mitchell, 126 N.J. 565, 579 (1992). Relaxation of the time-bar should only occur "under exceptional circumstances." Id. at 580. Following extensive review of your petition, this Court finds that you have failed to allege sufficient facts warranting relaxation of the time bar. As a result, your petition is time-barred and your request for a post conviction relief hearing is therefore denied. Please be advised of your right to appeal this decision within 45 days.

N.C. now appeals raising the following arguments:

POINT I

PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL VIOLATING HIS UNITED STATES SIXTH AMENDMENT CONSTITUTIONAL RIGHTS, AND, VIOLATING HIS FIRST AMENDMENT RIGHT TO THE NEW JERSEY CONSTITUTION.

POINT II

DEFENSE COUNSEL'S FAILURE TO MAKE A MOTION TO SUPPRESS THE PERJURED TESTIMONY OF STATE'S PRIMARY WITNESS ABROGATED PETITIONER'S UNITED STATES SIXTEENTH AMENDMENT RIGHT AND NEW JERSEY STATE'S ARTICLE 1 CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

DEFENSE COUNSEL ABROGATED PETITIONER'S CONSTITIONAL [SIC] RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO MAKE A MOTION FOR A MISTRIAL PURSUANT TO R. 3:20-1 RESULTING FROM PROSECUTORIAL MISCONDUCT.

POINT IV

DEFENSE COUNSEL ABROGATED PETITIONER'S CONSTITUTIONAL RIGHTS DUE TO DEFENSE COUNSEL'S FAILURE OF DUE DILIGENCE PURSUANT TO R. 4:17-7.

POINT V

PETITIONER IS ENTITLED TO DISMISSAL OF ALL CHARGES DUE TO FAILURE OF THE COURT TO ADVISE PETITIONER OF HIS RIGHT TO APPEAL PURSUANT TO R. 3:21-4(H).

POINT VI

PETITIONER IS ENTITLED TO THE BENEFIT OF FILING HIS PCR OUT OF TIME PURSUANT TO STATE V. MITCHELL, 126 N.J. 565 (1992).

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-2(e)(2). We thus affirm substantially for the reasons expressed by Judge Citta in his memorandum of opinion dated March 7, 2008. Defendant has not produced any evidence that would justify the relaxation of the time constraints contained in Rule 3:22-12(a). State v. Norman, 405 N.J. Super. 149, 159 (2009).

Affirmed.

20090506

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