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State v. Velez

October 13, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE VELEZ AKA PITO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94-08-1005.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2009

Before Judges Lisa and Baxter.

Defendant appeals from an order denying his second post-conviction relief (PCR) petition. He raises the following arguments:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND POST-CONVICTION RELIEF COUNSELS.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.

B. PETITIONER ARGUES HE WAS DENIED THE [EFFECTIVE] ASSISTANCE OF COUNSEL.

C. THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL.

D. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO TRIAL BY JURY AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT BECAUSE HIS SENTENCE VIOLATES THE DICTATES OF STATE V. NATALE AND BLAKELY V. WASHINGTON. U.S. CONST. AMEND., XIV, N.J. CONST. (1947), ART. 1, PARS. 8, 9, 10 AND 11.

We reject these arguments and affirm.

Tried to a jury in February 1997, defendant was convicted of murder and related crimes that he committed in 1994. On April 4, 1997, Judge Riva, who had presided over the trial, sentenced defendant to life imprisonment with a thirty-year parole disqualifier for the murder conviction. The convictions on all other counts were either merged or the subject of concurrent sentences. As a result, defendant's aggregate sentence is life imprisonment with a thirty year parole disqualifier.

Defendant appealed. In an unpublished opinion, we affirmed his conviction and sentence on November 9, 1999. State v. Velez, No. A-5443-96T4 (App. Div. November 9, 1999). The Supreme Court denied defendant's petition for certification. State v. Velez, 163 N.J. 396 (2000).

On May 23, 2000, defendant filed his first PCR petition. After conducting an evidentiary hearing, at which defendant was represented by PCR counsel, Judge Riva issued a written opinion and entered an order on November 5, 2001 denying the petition. We affirmed the order in an unpublished opinion, State v. Velez, No. A-2516-01T4 (App. Div. November 6, 2003), and the ...


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