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State v. Rojas

September 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAUL ROJAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-07-0912.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2010

Before Judges Fisher and Sapp-Peterson.

Defendant, Raul Rojas, appeals from the April 28, 2008 order denying his petition for post-conviction relief (PCR). We affirm.

Following a trial in 2004, defendant was found guilty of third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3); and third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Defendant was sentenced to an aggregate forty-two-month term of imprisonment with a thirty-six-month period of parole ineligibility. In an unpublished opinion, we affirmed defendant's conviction and the sentence imposed. State v. Rojas, No. A-0811-04 (App. Div. January 4, 2007)(slip op. at 6). In February 2007, defendant filed a pro se PCR petition.

Thereafter, in March 2007, counsel was assigned to represent defendant and filed an amended verified petition, along with a supplemental letter brief in support of defendant's petition and a reply opposition to the State's response. The court conducted oral argument on the issues raised in the PCR petition on April 25, 2008.

Before the PCR hearing, both counsel had the opportunity to speak to defendant's trial counsel and both counsel represented to the court that trial counsel had no specific recollection of why she did not pursue additional voir dire. Nor did she indicate any particular recollection she had that her decision not to exercise her remaining peremptory challenge to excuse Juror #12 was trial strategy.

During oral argument, the State agreed that the voir dire "was lousy," surmising that "it was a case of familiarity bred familiarity. You know, it didn't breed contempt in this case.... [I]t bred oh, I know you and you know me, and you know how the game is played, and so I don't have to ask you all these questions." The individual voir dire of Juror #12, Ms. Bennett, was as follows:

THE COURT: Hello, Ms. Bennett. How are you?

JUROR BENNETT/12: Fine, Judge.

THE COURT: Do we know each other?

JUROR BENNETT/12: Yes, we do.

THE COURT: Pretty well, huh?

JUROR BENNETT/12: Pretty well.

THE COURT: You work -- how do you think I'm doing, by the way?

JUROR BENNETT/12: I am very impressed.

THE COURT: Wow.

JUROR BENNETT/12: Very impressed, Judge.

THE COURT: I think I know something about you. So instead of asking questions, you are the court clerk for the Honorable James Francis Mulvihill sitting right over there.

JUROR BENNETT/12: Yes, I am.

THE COURT: Correct?

And he is my chamber mate.

JUROR BENNETT/12: Yes, he is.

THE COURT: Right?

And so you and I see each other every day.

JUROR BENNETT/12: Hm-mm.

THE COURT: And do you know [the assistant prosecutor] because ...


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