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State v. Salamon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GABOR SALAMON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-09-1238.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 5, 2009

Before Judges Gilroy and Chambers.

Defendant Gabor Salamon appeals from the denial of his post-conviction relief petition claiming ineffective assistance of counsel because he and his co-defendant were both represented by the Ocean County Public Defender's Office.

On December 15, 2003, defendant pled guilty to one count of first-degree carjacking, N.J.S.A. 2C:15-2. The plea agreement provided for the dismissal of the remaining counts against him, namely, second-degree robbery, N.J.S.A. 2C:15-1; third-degree theft by unlawful taking of an automobile, N.J.S.A. 2C:20-3; and third-degree receiving stolen property, N.J.S.A. 2C:20-7. The State agreed to recommend a sentence of ten years imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Thereafter, on January 26, 2004, defendant's co-defendant Eve Steinmetz also pled guilty to first-degree carjacking, N.J.S.A. 2C:15-2. Her plea agreement also provided that the remaining counts against her would be dismissed and the State would recommend a sentence of ten years imprisonment subject to an eighty-five percent period of parole ineligibility under NERA. As part of her plea agreement, however, she reserved the right to seek a sentence in the seven to eight year range. She also agreed to cooperate with the State and to testify against defendant, although by then defendant had already pleaded guilty.

On February 6, 2004, defendant was sentenced pursuant to his plea agreement to ten years imprisonment subject to the eighty-five percent period of parole ineligibility under NERA. On March 12, 2004, the co-defendant was sentenced one degree lower, and received a seven year sentence of imprisonment, subject to the eighty-five percent period of parole ineligibility under NERA.

At the Excessive Sentencing Oral Argument calendar on May 4, 2005, defendant challenged the disparity in the two sentences. We remanded the case to the trial court to set forth the reasons for the disparity in the sentences. On remand, the trial judge explained that the co-defendant was given the lighter sentence because she had no prior record and she was not "the prime mover" of the offenses. At the Excessive Sentencing Oral Argument calendar on December 13, 2005, defendant again challenged the disparity in the sentences, and we directed that the case be placed on the regular calendar. The sentence was thereafter affirmed. State v. Salamon, No. A-5409-03 (App. Div. Sept. 22, 2006). The Supreme Court denied certification. State v. Salamon, 189 N.J. 428 (2007).

In his post-conviction relief petition, defendant argued ineffective assistance of trial counsel, maintaining that a conflict of interest was present because both he and his co-defendant were represented by attorneys from the same regional Public Defender's Office. The trial court denied the petition, and this appeal followed.

On appeal, defendant raises the following issues:

POINT I.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

A. Defendant Made A Prima Facie Showing.

B. Trial Counsel Was Ineffective Because He Failed To Address The Actual Conflict Of Interest That Had Arisen.

POINT II.

APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III.

DEFENDANT'S POST-CONVICTION RELIEF (PCR) COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.

POINT IV.

COUNSELS' CUMULATIVE ERRORS RESULTED IN A MANIFEST INJUSTICE.

We affirm substantially for the reasons set forth by the trial judge. The fact that defendant and his co-defendant were both represented by attorneys in the Public Defender's Office, does not necessarily give rise to a conflict. See State v. Bell, 90 N.J. 163, 171 (1982) (holding "that there is no presumed or per se rule of conflict of interest where deputy public defenders represent multiple defendants"). A presumption of an actual conflict will arise where "the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice." Ibid. Defendant maintains that his co-defendant's willingness to testify against him meets this standard. We disagree. Defendant had already pled guilty by the time his co-defendant entered her plea. As the trial judge said when rejecting this argument:

[I]f she made a deal to provide testimony, truthful testimony against him, it was of no moment, it was like giving up air, because he had already pled guilty. His case was disposed of and he was pending sentence.

We see no merit in defendant's remaining arguments. R. 2:11-3(e)(2).

Affirmed.

20090519

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