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State v. Ferdinand

May 26, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KNUD FERDINAND, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 96-10-1939.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Stern and Espinosa.

Defendant appeals from the denial of his petition for post-conviction relief and request for an evidentiary hearing. We affirm.

Defendant was indicted on October 15, 1996, and pled guilty on January 27, 1997, to a fourth degree charge of enticing a child, N.J.S.A. 2C:13-6,*fn1 pursuant to a negotiated plea agreement. As part of the factual basis for his guilty plea, defendant admitted that he attempted to entice a female less than eighteen years old into his automobile for the primary purpose of having sexual intercourse with her. He was sentenced to probation for two years on March 14, 1997.

Defendant was later convicted of second degree sexual assault and disorderly persons offenses of simple assault and impersonating a police officer, arising from an assault that occurred in September 1999, just eighteen months after he was placed on probation for the instant offense. On January 7, 2000, defendant was sentenced on the sexual assault conviction to nine years imprisonment with a parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2a, and to concurrent terms for the disorderly persons convictions. He was incarcerated from January 7, 2000, until May 6, 2006.

On December 20, 2006, approximately ten years after he was sentenced on the enticing a minor conviction, defendant filed this petition for post-conviction relief. Defendant states that his attorney "operated under a conflict of interest because, at the time he represented defendant, counsel was indicted and resolved [sic] his own criminal charges in Hudson County." As a result, defendant contends, he was denied the effective assistance of counsel.

Defendant asserts that he retained James R. Lisa to represent him in this matter in April 1996. On July 3, 1996, Lisa was charged in a municipal complaint with possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a, and two disorderly persons offenses: being under the influence of a controlled dangerous substance without a prescription, N.J.S.A. 2C:35-10b, and use of drug paraphernalia, N.J.S.A. 2C:36-2. Lisa was never indicted on these charges. He was admitted into the Pretrial Intervention Program (PTI) in Hudson County on October 22, 1996. Lisa's case was transferred to Essex County for supervision, presumably contemporaneously, and he completed PTI on March 5, 1998.

The Supreme Court ordered that Lisa be suspended from the practice of law for three months. Its decision on February 26, 1998, was published, In re Lisa, 152 N.J. 455 (1998).

Defendant raises the following issues on appeal from the denial of his petition:

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

1. DEFENDANT'S PETITION WAS NOT TIME BARRED.

2. DEFENDANT PRESENTED SUFFICIENT FACTS IN HIS PETITION ALLEGING THAT HIS TRIAL COUNSEL OPERATED UNDER A CONFLICT OF INTEREST, ...


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