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State v. Pashuck

June 7, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD K. PASHUCK, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 93-04-164-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 2, 2010

Before Judges Carchman and Lihotz.

Defendant Richard Pashuck appeals from a Law Division order dismissing his supplemental petition for post-conviction relief (PCR). Defendant had filed an initial PCR petition, which was denied. He appealed from the order denying relief but his appeal was administratively dismissed. Defendant then filed a supplemental PCR petition arguing PCR counsel was ineffective, and requested review of the issues previously raised, but not reviewed, on appeal. He argues:

POINT I BECAUSE OF PCR COUNSEL'S FAILURE TO TIMELY FILE THE APPELLATE BRIEF, THE APPEAL WAS ADMINISTRATIVELY DISMISSED. THE GROUNDS SOUGHT TO BE ADVANCED ON THE DEFENDANT'S APPEAL OF RIGHT FROM THE DISMISSAL OF THE INITIAL PCR PETITION WERE NOT REVIEWED BY THE APPELLATE DIVISION. THE APPELLATE DIVISION DENIED THE MOTION TO REINSTATE WITH LEAVE TO FILE A PCR PETITION BASED ON THAT FAILURE TO PERFECT THE DEFENDANT'S APPEAL. ON THE SUPPLEMENTAL PCR HEARING, THE TRIAL JUDGE WOULD NOT REVIEW THOSE APPELLATE GROUNDS BUT INSTEAD DISMISSED THE SUPPLEMENTAL PCR PETITION SO THAT THOSE APPELLATE GROUNDS COULD BE REVIEWED BY THE APPELLATE DIVISION, THOSE GROUNDS BEING SET FORTH AT POINT II, III AND IV BELOW.

POINT II THE PCR JUDGE DID NOT UNDERSTAND THE "BRADY VIOLATION ON INTERLOCUTORY APPEAL" ISSUE AS HE HELD THAT THIS ISSUE "WAS FULLY LITIGATED AT THE TRIAL LEVEL AND ON THE DIRECT APPEAL." THE BRADY-MISIMPRESSION PRESENTED TO THE APPELLATE DIVISION ON ITS GRANT OF INTERLOCUTORY APPEAL COULD NOT HAVE BEEN DECIDED BY A TRIAL JUDGE ON REMAND FROM THE INTERLOCUTORY APPEAL. LIKEWISE, THIS INTERLOCUTORY JUDICIAL DECEIT ISSUE WAS NOT RAISED ON THE DIRECT APPEAL [OR CERTIFICATION] BY PREDECESSOR TRIAL COUNSEL.

POINT III THE PCR JUDGE ERRED IN ASSESSING DUE PROCESS ENTRAPMENT BASED ONLY ON THE TRIAL RECORD. THAT TRIAL RECORD IS NECESSARILY DEFICIENT SINCE DUE PROCESS ENTRAPMENT WAS NEVER RAISED BY TRIAL COUNSEL. PCR COUNSEL WAS ENTITLED TO DISCOVERY AND AN EVIDENTIARY HEARING ON THE DUE PROCESS ENTRAPMENT ISSUES OUTLINED IN PCR COUNSEL'S IN CAMERA SUBMISSION.

POINT IV THE PCR JUDGE, WHOSE FATHER WAS THE TRIAL JUDGE, ERRED IN DENYING THE RECUSAL MOTION. THE PCR ISSUES IMPLICATED JUDICIAL INQUIRY INTO FACT SENSITIVE ISSUES INVOLVING THE PRETRIAL AND TRIAL PROCEEDINGS. AT THE LEAST, THE APPEARANCE OF IMPROPRIETY REQUIRED RECUSAL OF THIS PCR JUDGE. IN CONTESTED PROCEEDINGS WITH SUCCESSIVE JUDICIAL INVOLVEMENT OF FAMILY MEMBERS, THERE SHOULD BE PER SE DISQUALIFICATION OF THE SECOND FAMILY MEMBER.

We have considered these arguments in light of the record and applicable standards. We affirm.

These are the facts adduced at trial. On March 15, 1993, defendant met a man in the Woodstown Hotel bar who identified himself as "Miami Eddie" Taylor. After several hours of drinking and playing pool, Miami Eddie asked whether defendant could procure some cocaine. According to defendant, he refused four times before acquiescing to Miami Eddie's request. Defendant approached someone he knew in the bar who agreed to sell him two packets of cocaine for $90. Defendant obtained the cocaine then, in a transaction occurring outside the bar in Miami Eddie's car, sold the cocaine to an undercover police officer, Detective Edward Spinelli, posing as Miami Eddie's brother-in-law. Defendant was arrested and indicted for possession and distribution of cocaine and resisting arrest.

Prior to trial, defendant sought disclosure of the identity of the informant posing as Miami Eddie, presumably to call him as a witness in an effort to prove an entrapment defense. The trial court denied the motion, concluding it implausible that disclosure of the informant's true identity could assist in proving the defense. However, he ordered the State generally to reveal Miami Eddie's role if he was a confidential informant. We granted leave to appeal and affirmed the trial court's order in an unpublished opinion. State v. Pashuck, No. A-862-93T5 (App. Div. March 22, 1994) (slip op. at 2) (Pashuck I). Immediately before the four-day trial commenced, the State disclosed Miami Eddie was an informant who had previously participated in undercover operations for the federal Drug Enforcement Agency and the Salem County Narcotics Task Force (Task Force). State v. Pashuck, No. A-6359-93T1 (App. Div. Dec. 5, 1995) (slip op. at 3) (Pashuck II).

The jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1); and fourth-degree resisting arrest by use or threat to use physical force or violence, N.J.S.A. 2C:29-2. The court merged the possession conviction into the distribution conviction and, after considering both aggravating and mitigating factors, sentenced defendant to two years probation with sixty days in the county jail. Appropriate fines and penalties were also imposed, and defendant's driver's license was suspended for one year.

Defendant appealed his conviction and sentence alleging, among other things, the trial judge should have molded the charge on entrapment to the facts of the case and that the judge should not have denied defendant's request for discovery of reports and other information on the prior informant activities of Miami Eddie. We affirmed defendant's conviction, generally finding his arguments were without merit. Pashuck II, supra, slip op. at 2. We noted "defendant received sufficient information in discovery to enable him to present an entrapment ...


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