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State v. Henderson

April 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GABRIEL HENDERSON A/K/A ROBERT SERRANO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-02-0276.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2010

Before Judges Lisa and Alvarez.

Defendant appeals from an order denying his post-conviction relief (PCR) petition. Essex County Indictment No. 00-02-0276 charged defendant with seven counts, including one count of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), and four counts of attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1. Pursuant to a plea agreement, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a and two amended counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). He also pled guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. In exchange for the plea to those charges, the State agreed to dismiss all remaining counts and to recommend an aggregate sentence not exceeding fifteen years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 26, 2002, defendant was sentenced in accordance with the plea agreement. He received a fifteen-year NERA sentence for aggravated manslaughter, and concurrent seven-year sentences on the other three counts.

Defendant appealed. The matter was placed on our excessive sentencing calendar. See R. 2:9-11. On November 16, 2006, we issued an order remanding the matter to the trial court for entry of a corrected judgment of conviction to reflect merger of the possession of a weapon for an unlawful purpose count with the aggravated manslaughter count, but in all other respects affirmed defendant's conviction and sentence.

On January 29, 2007, defendant filed his PCR petition. Counsel was assigned, and the matter came before Judge Kennedy, who issued a written opinion and order denying the petition without an evidentiary hearing. This appeal followed.

Defendant presents the following arguments:

POINT ONE

THE COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT'S MOTION FOR POST CONVICTION REL[IE]F (PCR) AND IN THE ALTERNATIVE THE COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT AN EVIDENTIARY HEARING.

A. The trial court committed error by not vacating the Appellant's plea and sentence to aggravated manslaughter because the factual statement did not meet the elements to establish the charge of aggravated manslaughter.

B. The Appellant's trial counsel was ineffective for not arguing any mitigating factors on his behalf and arguing for a sentence below the term recommended by the [S]tate.

C. The Appellant's plea was void because he did not complete the required forms advising him of the parole requirements under the No Early Release Act.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons set forth in Judge Kennedy's November 1, 2007 written opinion. For the sake of completeness, we set ...


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