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State v. Gilbert

October 22, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY K. GILBERT, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 92-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2009

Before Judges Axelrad and Espinosa.

Appellant Jeffrey K. Gilbert appeals from the denial of his petition for post-conviction relief (PCR) from a conviction for passing a bad check in Burlington Township. We affirm.

In August 1990, Burlington Township Municipal Court Complaint No. W024358 was filed, charging appellant with a third-degree offense. The complaint alleged that on August 31, 1990, appellant did "attempt to commit the crime of theft by deception by attempting to withdraw[] $800.00 in cash and $1500.00 in a cashiers check on a[n] account which he knew to lack sufficient funds in violation of [N.J.S.A. 2C:5-1]." The probable cause for this charge was described as follows:

On August 28, 1990 defendant opened an account at the Burlington County Bank by depositing a check of $2340.81 drawn on [an account at] the National Community Bank . . . he knew the account to be closed. On August 31, 1990 defendant attempted to withdraw[] a total of $2300 from the account which he opened at the bank. Defendant opened the . . . account at the Burlington County Bank (Delanco office) and tried to withdraw[] the money at the Burlington office.

The charge was referred to the Burlington County Prosecutor's Office which, upon review, elected to downgrade the offense to an amended charge, N.J.S.A. 2C:21-5. This statute provides that "[a] person who passes a check . . . for the payment of money, knowing that it will not be honored by the drawee, commits an offense . . . ." Ibid. Knowledge that the check will not be paid is presumed if payment is refused due to a closed account. Ibid.

On April 9, 1991, appellant appeared in the Burlington Township Municipal Court (the "municipal court") after he was arrested pursuant to a bench warrant issued for failure to pay fines imposed for a January 1991 conviction for driving under the influence. The municipal court records reflect that appellant pled guilty on that date to the downgraded charge of passing a bad check and was sentenced to forty-five days in the Burlington County Jail and a $30 Violent Crimes Compensation Board penalty. The court suspended other fines and costs. Appellant did not challenge this conviction in any way until more than twelve years later.

On July 8, 2003, appellant challenged his 1991 conviction before municipal court judge Dennis McInerney, the judge who had accepted the guilty plea and sentenced him. He had not yet filed a PCR petition but had inquired whether the court would entertain such a petition. The court advised appellant that the application submitted was denied on the grounds that, pursuant to Rule 7:10-2(b)(2), such a petition had to be made within five years of the conviction.

Thereafter, appellant contacted the municipal court for records in conjunction with his attempt to file a PCR petition. By letter dated September 18, 2003, the Court Administrator transmitted the disposition for the conviction and advised:

ACCORDING TO THE NJ RULE R.1-32.2 ALL OF THE ORIGINAL RECORDS AND TAPES HAVE BEEN DESTROYED, WE ONLY HAVE DOCKET BOOKS THAT GIVE THE DISPOSITION OF YOUR CASES. WE CANNOT GIVE YOU ANY OTHER INFORMATION ONLY THE DISPOSITION THAT IS ENCLOSED WITH THIS LETTER.

Therefore, when appellant filed a PCR petition in May 2004, he was aware that the municipal court had no original records of the court proceedings he was now challenging. Appellant's verified petition contains a single sentence to support the request for relief, "I do not recall being represented by counsel prior to or during the proceedings relating to warrant no. W024358 on or before April 9, 1991." In his memorandum of law, appellant contended that he did not in fact plead guilty to either the original charge of criminal attempt or the downgraded charge of bad checks on April 9, 1991. Furthermore, Defendant contends that he is actually innocent of the crime of passing a bad check in Burlington Township; and that because he was convicted of the identical offense in Delanco Township on May 1, 1991, he has been unjustly convicted twice for the same offense.

Appellant's petition is silent as to the reason for his thirteen-year delay. Only a very limited explanation is provided in his ...


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