On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-07-0986.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Alvarez.
This is an appeal from the denial of defendant Miguel A. Alquino's petition for post-conviction relief (PCR) without an evidentiary hearing. We reject defendant's contentions and affirm.
On October 21, 1999, a jury convicted defendant of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count three); and first-degree robbery, N.J.S.A. 2C:15-1 (count four). Defendant was tried in absentia and not taken into custody on the arrest warrant which issued for his failure to appear until years later. At sentencing on June 20, 2003, the trial judge merged counts one and three into count four. He imposed a custodial term of ten years subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A concurrent five-year term was imposed on count two. Defendant's direct appeal was denied in an unpublished opinion and his petition for certification was also denied on April 13, 2006. State v. Alquino, No. A-2275-03 (App. Div. Feb. 7, 2006), certif. denied, 186 N.J. 605 (2006).
Defendant filed for PCR relief on August 7, 2006, and he was assigned counsel on August 18, 2006. The oral decision and written order denying defendant's motion was rendered on June 15, 2007.
The facts need not be set forth at length, as they are fully narrated in the direct appeal opinion and are not necessary to this decision. Details related to defendant's failure to appear at trial, however, as well as his identification by the victim, are relevant.
Essentially, the victim, Kenneth Spence, caught defendant in the act of attempting to steal his truck radio. During the ensuing confrontation, defendant grabbed a tire iron and asked the victim in a threatening manner, "You want to be dead[?]" Spence told defendant to leave and immediately called police. Spence gave a detailed description of the driver and the car to the officer who responded to the scene, including license plate information.
A neighbor with whom Spence had been discussing the incident "called to him" shortly thereafter to say that the perpetrator's car had just driven by. Spence got into his truck and followed. When the vehicle stopped at a nearby parking lot, Spence called the authorities from a public telephone. The car was gone when he returned, but as he drove down the street, he came upon the arrest scene. Spence saw that police had someone in custody, and as he approached the scene, Spence recognized the person he had seen in his truck. Spence said he recognized the person "[a]bsolutely."
Spence also testified that the parking lot where defendant stopped his vehicle was three-quarters of a mile from Spence's home. The distance took him approximately two minutes to traverse. Spence's identification of defendant at the arrest scene, by his reckoning, occurred within moments of his call to police.
According to police, the call from the victim about the attempted burglary came approximately one hour before the call from the victim stating that the thief's vehicle was parked in a nearby lot. Defendant was apprehended moments after the second call from the victim, and the victim arrived on the scene within moments of the officers stopping defendant's car. A tire iron was found on the floor of the vehicle driven by defendant.
Initially, defendant refused to sign the trial memorandum. On June 28, 1999, however, a second trial memorandum was prepared that he did sign which indicated the trial date was now set for September 8, 1999. That trial memorandum included a notification pursuant to State v. Hudson, 119 N.J. 165, 182 (1990), and Rule 3:16(b), explaining defendant's obligation to appear for trial and that the case would proceed even if he were not present. The trial did not take place on the initial scheduled date.
On October 18, 1999, the trial court told defendant while he was in court and on the record that trial "may take place this week." The court instructed defendant to call his attorney to see if he needed to appear in court on October 20, a Wednesday. The court further advised defendant that if his case was not ...