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State v. Nero

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MAURICE NERO,*FN1 DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 90-10-1433.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2009

Before Judges Gilroy and Chambers.

Defendant Maurice Nero appeals from the order of February 29, 2008, denying his petition for post-conviction relief.

In 1992, defendant was convicted by a jury of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and third-degree criminal restraint, N.J.S.A. 2C:13-2. The trial court sentenced defendant to an extended term of twenty years in state prison with ten years of parole ineligibility on the sexual assault conviction, and imposed a consecutive sentence of five years imprisonment with two and one-half years of parole ineligibility on the criminal restraint conviction. The convictions and sentence were affirmed on appeal. State v. Nero, No. A-1903-92 (June 16, 1994). The Supreme Court denied certification. State v. Nero, 138 N.J. 271 (1994).

In his pro se petition for post-conviction relief, defendant raised the following issues: (1) his trial counsel was ineffective for failing to advise defendant of the potential consequences of commitment under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38; (2) "no test exists to determine if an individual's sexual behavior is repetitive and compulsive"; and (3) a competency hearing was not held.

In a written opinion denying the petition for post-conviction relief, the trial court determined that the petition was untimely. In the interest of justice, the trial court addressed the merits and determined that counsel's failure to advise defendant of the possibility of civil commitment under the SVPA did not amount to ineffective assistance of counsel, noting that the SVPA became effective after defendant's trial and sentence. Indeed, the SVPA was enacted in 1998 and became effective in 1999. N.J.S.A. 30:4-27.24.

On appeal, defendant raises the following issues:

POINT ONE

MR. NERO IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

MR. NERO IS ENTITLED TO A REMAND BECAUSE THE PCR COURT DID NOT PROPERLY ADDRESS ALL OF HIS CLAIMS ON THE MERITS.

POINT THREE

THE CLAIMS IN MR. NERO'S PETITION, CERTIFICATION, AND BRIEF ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

We affirm for substantially the reasons set forth in the trial court's written decision. With respect to defendant's contention that the trial court did not address the question of competency and the test for compulsive and repetitive conduct, we note that those claims were implicitly rejected as untimely. Further, defendant has set forth no argument or facts to support these contentions and hence they are bare assertions that are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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