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State v. Labrada

August 11, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JORGE LABRADA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 89-05-0666.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 13, 2008

Before Judges Rodríguez and Payne.

Defendant Jorge Labrada appeals from the July 2, 2007 denial of his petition for post-conviction relief (PCR). We affirm.

An escape code sounded at the New Jersey State Prison, located in Trenton, at approximately 3:55 a.m. on November 21, 1988. The responding officers found two inmates still within the prison, standing near a ladder positioned against the prison wall. The inmates had been able to dig a hole through approximately thirty-nine inches of stone to escape and assemble a ladder in the alleyway for the purpose of climbing over the prison wall. Two inmates, defendant and Andrew Bisesi, were unable to escape over the wall and were wrestled to the ground and handcuffed. A third inmate's foot was seen going over the barbed wire prison wall. Both inmates were strip searched. Two shanks were found taped to defendant's legs.

Defendant was later examined by Dr. Gibbons, a physician at the prison, who testified that defendant had superficial abrasions on his anterior chest wall and on both knees. Fourteen hours after Defendant and Bisesi were found near the ladder, Officer Richard Czyz and his partner apprehended the third escapee, Gonzalo Marrero.

Defendant was convicted by a jury of third-degree criminal attempt to escape, N.J.S.A. 2C:5-1, 2C:2-6 and 2C:29-5a. On June 22, 1990, Judge David J. Schroth imposed an extended ten-year term with a five-year period of parole ineligibility, to run consecutively with the sentence defendant was already serving.

Defendant moved to file an appeal nunc pro tunc on November 15, 2004. We denied the motion without prejudice and referred it to the Office of the Public Defender to determine whether pursuit of a petition for PCR would be a more appropriate remedy. State v. Labrada, No. AM-214-04T3 (App. Div. Jan. 4, 2005).

On June 29, 2005, defendant filed pro se a first PCR petition. Counsel was appointed. He filed an amended PCR petition and a memorandum of law.

Judge Andrew J. Smithson denied defendant's PCR petition because it was time-barred by Rule 3:22-12. The judge further rejected defendant's claim for relief based on an illegal sentence, finding State v. Natale, 184 N.J. 458 (2005) inapplicable because defendant's case was not on direct appeal at the time that decision was issued. The judge issued a written opinion.

On appeal, defendant contends:

I. DEFENDANT'S PETITION FOR [PCR] SHOULD NOT HAVE BEEN BARRED BECAUSE IT ...


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