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State v. Polanco

August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JACINTO ROMAN POLANCO, A/K/A JACINTO P. ROMAN, JACENTO ROMAN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 02-04-0986; 00-06-1248.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 6, 2010

Before Judges Stern and Wefing.

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged in two separate indictments. In Indictment 00-06-1248, he was charged with one count of attempted murder, N.J.S.A. 2C:5-1, 2C:11-3; two counts of aggravated assault, one in the second degree, N.J.S.A. 2C:12-1b(1), and one in the third degree, N.J.S.A. 2C:12-1b(2); unlawful possession of a weapon, N.J.S.A. 2C:39-4d; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5d. In Indictment 02-04-0986, he was charged with two counts of distribution of cocaine within five hundred feet of a public park, a crime of the second degree, N.J.S.A. 2C:35-7.1; three counts of possession of cocaine, a crime of the third degree, N.J.S.A. 2C:35-10a(1); and two counts of distribution of cocaine, a crime of the third degree, N.J.S.A. 2C:35-5a(1),-5b(3).

Defendant was tried before a jury on the first indictment and was found guilty of two counts of aggravated assault, unlawful possession of a weapon and possession of a weapon for an unlawful purpose; he was found not guilty of attempted murder. Thereafter, he entered a negotiated plea of guilty to the two counts of second-degree distribution of cocaine within five hundred feet of a public park, and the remaining counts of that indictment were dismissed.

At sentencing, the trial court granted the State's motion to sentence defendant to an extended-term sentence as a persistent offender and, after merging the third-degree conviction for aggravated assault into the second-degree conviction, it imposed an aggregate sentence of ten years in prison, subject to the terms of N.J.S.A. 2C:43-7.2, the No Early Release Act ("NERA"). For defendant's two drug-related convictions, the trial court sentenced defendant to two concurrent eight-year terms in prison, each with a three-year period of parole ineligibility, to be served concurrently with the sentence for aggravated assault.

Defendant appealed his convictions and sentence under Indictment 00-06-1248, and we affirmed his convictions but remanded for resentencing. State v. Polanco, No. A-2566-03T4 (App. Div. Nov. 16, 2005).

Defendant thereafter filed a petition for post-conviction relief. After hearing oral argument, the trial court denied that petition without having conducted a plenary hearing. This appeal followed.

In our earlier opinion, we summarized the facts underlying defendant's conviction for aggravated assault:

The aggravated assault charge arose from an incident on April 24, 2000. At that time, both defendant and the victim, Elvin Sanabria, were working as barbers at the Latin Barbers Hair Cutting Shop in Englewood. Due to an apparent dispute over a customer, defendant and Sanabria had an altercation, and defendant stabbed Sanabria nineteen or twenty times with a screwdriver. Sanabria was admitted to the Intensive Care Unit at Englewood Hospital, but he did not have insurance and he was discharged the next day. [slip op. at 5-6.]

Defendant raises the following ...


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