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State v. Oquendo

May 8, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRUTO OQUENDO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-05-1401.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 26, 2009

Before Judges Sapp-Peterson and Alvarez.

Defendant Fruto Oquendo appeals from an order dated June 9, 2006, denying his petition for post-conviction relief (PCR). On appeal, defendant presents the following arguments:

POINT I

THERE WAS AN INADEQUATE FACTUAL BASIS FOR DEFENDANT'S GUILTY PLEA TO ATTEMPTED MURDER, AND DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, ON DIRECT APPEAL AND ON POST-CONVICTION RELIEF (NOT RAISED BELOW).

POINT II

THE TRIAL COURT IMPOSED AN INCORRECT, ILLEGAL AND/OR OTHERWISE UNCONSTITUTIONAL SENTENCE, AND THE FAILURE OF TRIAL AND APPELLATE COUNSEL TO PROPERLY RAISE AND ARGUE THIS ISSUE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT III

THE FAILURE OF THE TRIAL JUDGE TO RECUSE AT THE PCR HEARING REQUIRES REMAND FOR A NEW PCR HEARING BEFORE ANOTHER JUDGE.

POINT IV

SINCE THE SENTENCE IMPOSED BY THE TRIAL COURT UTILIZED INAPPLICABLE AGGRAVATING FACTORS AND FAILED TO ADEQUATELY CONSIDER APPLICABLE MITIGATING FACTORS, IT IS IN EXCESS OF OR OTHERWISE NOT IN ACCORDANCE WITH THE SENTENCE AUTHORIZED BY LAW AND THEREFORE ILLEGAL; THE MATTER MUST BE REMANDED FOR RESENTENCING. THE FAILURE OF TRIAL AND APPELLATE COUNSEL TO PROPERLY RAISE AND ARGUE THIS ISSUE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.

After considering these contentions in light of the record, the applicable law, and the motion court's findings and conclusions, we are satisfied that defendant's arguments do not warrant extended discussion in a written opinion. R. 2:11- 3(e)(2). We agree with the motion court's assessment of defendant's petition and affirm substantially for the reasons ...


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