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State v. Antonetty

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TONY ANTONETTY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0573.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 26, 2009

Before Judges Reisner and Alvarez.

Defendant Tony Antonetty appeals the January 8, 2007 denial of his petition for post-conviction relief (PCR). We affirm, but remand for the sole purpose of correcting the Judgment of Conviction.

On December 2, 2003, defendant entered a guilty plea to first-degree armed robbery, N.J.S.A. 2C:15-1, in exchange for the State's recommendation of a sentence of twelve years of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The Judgment of Conviction states that defendant was sentenced for second-degree armed robbery. We remand the matter for the sole purpose of correction of that error.

In addition to being required, pursuant to NERA, to serve 85% of his sentence, defendant was subject to a five-year term of parole supervision. Defendant was originally charged on multiple counts of robbery, receiving stolen property, unlawful possession of an imitation firearm, possession of an imitation firearm for unlawful purpose, and similar offenses related to crimes committed on November 12 and November 13, 2002, involving three separate victims. When the plea was entered, defendant signed the requisite plea form in addition to the supplemental plea form for NERA cases. Defendant was sentenced in accord with the negotiated agreement on February 13, 2004.

Defendant filed his pro se petition for PCR on July 17, 2006. The matter was assigned to the Office of the Public Defender, and an attorney was designated to represent defendant. In his petition, plaintiff alleged that his plea attorney misrepresented the degree of the offense to which he was pleading guilty as well as the sentencing consequences. The proffered reason for the plea attorney doing so was a disagreement as to payment of counsel fees. Defendant claimed that he believed that the guilty plea was to robbery, a second-degree offense, and that he did not understand that the five-year term of parole supervision exposed him to a total term of imprisonment of seventeen years, assuming that he violated his parole supervision.

Judge Callahan found that defendant's arguments fell woefully short of the requisite prima facie case necessary for an evidentiary hearing to be conducted. After thorough and cogent analysis, Judge Callahan on January 8, 2007, denied the petition. We concur and deny this appeal essentially for the reasons stated by Judge Callahan in his thoughtful oral opinion issued from the bench. We add only the following comments.

When the plea was taken on December 2, 2003, defendant was asked if he understood that he was pleading guilty to a first-degree offense. He responded affirmatively. Defendant went on to acknowledge that he would be sentenced to twelve years subject to 85% parole ineligibility pursuant to NERA. He said that he signed and initialed his plea form. Defendant was also asked by the court if he understood that he would serve a five- year term of parole supervision, to which he replied affirmatively. The court specifically asked:

THE COURT: And do you understand further that in the event that you violate your parole during that five-year period of time, you could be required to return to jail to serve out the balance of your period of parole supervision, even though you would have already served 85 percent of whatever the sentence is?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Knowing all of that, do you still wish to plead guilty?

THE DEFENDANT: Yes, Your Honor.

Defendant stated in open court on the record that he understood both the nature of the offense and the sentence. More is required than defendant's bald assertions, which are in stark contrast to the statements he made during the plea proceedings. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Absent more than the bald assertions on this ineffective assistance of counsel claim, there was no necessity for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

20090707

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