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State v. Ryan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 24, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HAROLD M. RYAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 02-01-0017 and 02-01-0018.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 2010

Before Judges Skillman and Fuentes.

Defendant was indicted for three first-degree robberies, in violation of N.J.S.A. 2C:15-1; a second-degree robbery, in violation of N.J.S.A. 2C:15-1; and a third-degree burglary, in violation of N.J.S.A. 2C:18-2. Defendant filed a motion to suppress an inculpatory statement he made following his arrest. Before the hearing on the motion, the prosecutor offered to enter into a plea agreement under which the prosecutor would recommend an aggregate ten-year sentence and defendant would waive his right to a hearing on his motion to suppress. The prosecutor made it clear on the record that this plea offer would be withdrawn if the hearing was held and the motion to suppress was denied.

Defendant insisted upon proceeding with the motion, and after hearing testimony, the trial court concluded that defendant's statement was admissible. The prosecutor then offered to enter into a plea bargain under which defendant would be sentenced to an aggregate term of fifteen years for the three first-degree robberies, the second-degree robbery, and the third-degree burglary. Defendant accepted this offer. At sentencing, defendant made a motion to withdraw his guilty plea, which the trial court denied.

The trial court sentenced defendant in accordance with the plea bargain to fifteen-year terms of imprisonment, subject to the 85% period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the three first- degree robberies, a seven-year term of imprisonment, subject to the 85% period of parole ineligibility required by NERA, for the second-degree robbery; and a four-year term of imprisonment for the third-degree burglary, all of which were to be served concurrently.

On appeal, which we heard on an excess sentence calendar, see R. 2:9-11, we affirmed defendant's sentence. State v. Ryan, A-6047-02T4 (May 25, 2004). The Supreme Court subsequently denied defendant's petition for certification. 182 N.J. 140 (2004).

Defendant filed a petition for post-conviction relief and a motion for reduction of his sentence. By written opinion dated January 22, 2008 and a memorializing order entered on that same day, the trial court denied both defendant's petition and motion.

On appeal from that order, defendant presents the following arguments:

POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE DURING PLEA BARGAINING.

B. COUNSEL FAILED TO CONSULT WITH DEFENDANT IN A MEANINGFUL MANNER.

C. COUNSEL FAILED TO FILE A SEVERANCE MOTION.

D. COUNSEL FAILED TO PROPERLY PREPARE AN INTOXICATION DEFENSE.

E. COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE DURING SENTENCING.

POINT II: THE LOWER COURT ORDER MUST BE REVERSED SINCE THE SENTENCE SHOULD HAVE BEEN REDUCED.

POINT III: THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND RENDERED THE SENTENCING UNFAIR.

POINT IV: THE LOWER COURT ORDER MUST BE REVERSED SINCE THE NEGOTIATED PLEA IS INVALID DUE TO PROSECUTORIAL VINDICTIVENESS.

POINT V: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VI: THE LOWER COURT ORDER DENYING THE MOTION MUST BE REVERSED SINCE DEFENDANT'S MOTION IS NOT TIME BARRED UNDER R. 3:21-10(a).

We reject these arguments, substantially for the reasons set forth in Judge Geiger's January 22, 2008 written opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

20100524

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