On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-12-2520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Payne and Waugh.
Defendant Daniel Gatson appeals the denial of his petition for post-conviction relief (PCR). We affirm.
We discern the following procedural and factual history from the record.
Following a jury trial in June and July 2002, Gatson was convicted of third-degree burglary, N.J.S.A. 2C:18-2 (count one); fourth-degree unlawful possession of a weapon, a stun gun, N.J.S.A. 2C:39-3(h) (count two); and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count three).*fn1
Gatson was given an extended-term sentence of eight years with a four-year period of parole ineligibility for the burglary; a consecutive eighteen-month sentence for the unlawful weapons possession; and a concurrent eighteen-month sentence for hindering apprehension.
We affirmed his conviction in State v. Gatson, No. A-0632- 03 (App. Div. March 19, 2007), but remanded for resentencing pursuant to State v. Natale (II), 184 N.J. 458, 484 (2005). The Supreme Court denied certification. State v. Gatson, 192 N.J. 69 (2007). At the sentencing remand, the trial judge imposed the same sentence.
Gatson filed his petition for PCR on August 6, 2007, alleging that the trial judge should have charged a lesser included offense and ineffective assistance of counsel. Assigned counsel filed a supplemental brief. The trial judge heard argument on the petition on February 27, 2008, but denied Gatson's request for an evidentiary hearing. After oral argument, he denied the petition. This appeal followed.
In our opinion affirming the conviction, we described the underlying facts as follows:
The trial record discloses that, on Sunday, June 11, 2000, at approximately 9:15 p.m., Bertran Draing, his father, Hans Draing, and Bertran's [then] fiancée, Diana Sloan, drove up to the Draing's home in Paramus in time to witness a suspected burglary in progress next door. The two men proceeded to investigate, while Sloan watched from the Draing's adjoining property. As she stood near the Draing's garage, she observed two black men leave the neighbor's house, proceed rapidly toward a parked white Ford Expedition truck, and take off. Both Sloan and Bertran had an opportunity to view one of the two men before he got into the truck's passenger seat. Although they sought to pursue the vehicle in a car owned by Bertran's father, they were unsuccessful. However, as Bertran drove, Sloan placed a [9-1-1] call, in which she described the truck, gave a partial license plate number, and identified the two alleged perpetrators as black males. A clothing description was also provided.
A broadcast of the content of the [9-1-1] call was received by patrol officers Robert Vonschalscha and Frank Scott, who were together at the time, but driving separate marked police vehicles. The two officers proceeded in their cars toward Paramus Road and, within approximately one minute, observed a white Ford Expedition being driven within 1.5 miles of the crime scene. The officers conducted a felony stop of the vehicle without incident, and after observing that the license plate contained the "4" and "J" attributed in the [9-1-1] call to the burglars' truck, ordered the vehicle's occupants, two black males, to exit the truck and to lie face down on the road. Vonschalscha and Scott handcuffed the two men, and, while they remained in the road, Scott returned to the truck to determine whether it contained any other occupants. His search disclosed none. However, he observed a stun gun in plain view on the truck's middle seat. As a result, the two males were arrested. A further search of the vehicle by Scott for additional weapons, occurring while Vonschalscha and a third, recently-arrived, ...