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State v. Panella

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 1, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN A. PANELLA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-03-0431.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 25, 2009

Before Judges Sabatino and Chambers.

Defendant Kevin A. Panella appeals his conviction of second-degree aggravated assault, N.J.S.A. 2C:12-1(b), entered October 26, 2005, pursuant to a negotiated plea agreement. In accordance with the plea agreement, the trial court sentenced defendant on January 6, 2006, to five years of imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, with three years of parole supervision, and imposed the requisite monetary penalties and assessments. On February 25, 2008, we granted leave to appeal out of time.

In this appeal defendant raises the following issue:

POINT I

DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IS SUPPORTED BY DEFENSE COUNSEL'S UNEXPLAINED FAILURE TO INVESTIGATE FACTS REGARDING CRITICAL ISSUES RAISED BY DEFENDANT TO HIS COUNSEL REGARDING THIS MATTER PRIOR TO TRIAL.

This issue was not raised before the trial court in a motion to vacate the plea nor in a post-conviction relief petition. Rather, it appears that defendant moved before the trial court for post-conviction discovery. By letter dated March 9, 2007, the trial court advised defendant that the motion was denied without prejudice because defendant had failed to file a petition for post-conviction relief. Defendant does not appeal that decision, but instead seeks to have this court set aside his conviction and vacate his sentence based on his ineffective assistance of counsel claim noted above. This we will not do.

A defendant's claim of ineffectiveness of counsel is best addressed in a post-conviction relief proceeding. State v. Preciose, 129 N.J. 451, 460 (1992). Further, a defendant's post-conviction relief petition must first be brought before the trial court in the county where the conviction was entered. R. 3:22-1. Only after the trial court's decision may an appeal be taken to this court. R. 2:3-2. Since defendant failed to raise his claim for ineffective assistance of counsel before the trial court in a post-conviction relief proceeding, the matter raised in this appeal is not properly before this court.

Appeal dismissed.

20090901

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