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State v. Garcia

July 8, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GIOVANNY GARCIA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-03-0392-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 12, 2009

Before Judges Fuentes and Gilroy.

Defendant Giovanny Garcia appeals from the order of the Law Division, Criminal Part, denying his post-conviction relief (PCR) petition. We affirm.

On November 22, 2002, the day scheduled for trial, defendant entered an open guilty plea*fn1 to second-degree robbery, N.J.S.A. 2C:15-1a(2), third-degree burglary, N.J.S.A. 2C:18-2a, third-degree criminal restraint, N.J.S.A. 2C:13-2a, and third- degree terroristic threats, N.J.S.A. 2C:12-3b. The court sentenced defendant to an aggregate term of seven years, with an eighty-five percent period of parole ineligibility, and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On defendant's direct appeal, we affirmed the conviction and sentence. State v. Giovanny Garcia, No. A-1537-05, (App Div. August 22, 2006). On October 13, 2006, defendant filed a pro se PCR petition alleging that his trial counsel was ineffective in failing to pursue a voluntary intoxication defense. Specifically, defendant argued that the evidence supported a voluntary intoxication defense because on the day he allegedly committed the crimes listed in the indictment, he was "drinking beer all day and popping Xanax like it was candy."

According to defendant, his inability to recall any of the details of his crimes at the plea hearing should have alerted his trial counsel to pursue this affirmative defense.

The matter came before Judge Conforti on July 17, 2007. After considering the arguments of counsel, Judge Conforti denied defendant's PCR petition. In his oral opinion, Judge Conforti found that, other than defendant's self-serving statements about his alleged consumption of alcohol and ingestion of psychotropic medication, the record was otherwise devoid of evidence to support an intoxication defense.

Defendant now appeals raising the following arguments:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST CONVICTION RELIEF. (Not Raised Below)

POINT II

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN PROCEEDINGS BEFORE THE TRIAL COURT LEADING TO THE ENTRY OF HIS GUILTY PLEA. (U.S. CONST., Amend. ...


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