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State v. Buffaloe

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 4, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS BUFFALOE, A/K/A MILTON GARDNER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-1621-B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Cuff and Waugh.

Defendant Milton Gardner, who was indicted as Thomas Buffaloe, appeals an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

In August 2004, Gardner was indicted in four counts on charges involving aggravated assault and possession of weapons. On September 21, 2004, he accepted a plea offer and pled guilty to a single amended count charging him with fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(3) ("recklessly causes bodily injury to another with a deadly weapon"). He was sentenced to 365 days in state prison, to be served concurrently with a pending violation of probation and a pending charge in another county. The remaining counts were dismissed, as was a related disorderly persons charge.

Gardner did not appeal. He served his sentence and was released. He was subsequently arrested on federal charges involving conduct that took place after his release from state prison. On February 16, 2007, Gardner filed his PCR petition, contending that his trial counsel "gave him misinformation and advice, . . . and failed to advise him he could receive an enhanced sentence in the future based upon his conviction."*fn1

Judge James E. Isman heard oral argument on Gardner's PCR application on June 29, 2007. Gardner was represented by appointed counsel, and participated by telephone because of his federal incarceration in another state. Judge Isman denied the petition, relying on our decision in State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.), certif. denied, 162 N.J. 128 (1999) (There is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty.").

Having reviewed Gardner's arguments on appeal in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons set forth in Judge Isman's comprehensive oral decision.

Affirmed.


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