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State v. Morales

September 29, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HECTOR C. MORALES, A/K/A HECTOR L. DAVILA*FN1, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-08-1545.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2010

Before Judges Wefing and Koblitz.

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 reverse and remand for further proceedings.

Tried to a jury, defendant was convicted of three counts of third-degree burglary, N.J.S.A. 2C:18-2, and three counts of third-degree theft, N.J.S.A. 2C:20-3. The trial court sentenced defendant to an aggregate sentence of fifteen years in prison, with a seven-and-one-half-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed. State v. Morales, No. A-5921-00 (App. Div. Oct. 24, 2002), certif. denied, 178 N.J. 375 (2003). Defendant filed a timely petition seeking post-conviction relief, in which he alleged that he had not received effective assistance from his counsel. The trial court denied defendant's petition after hearing oral argument but without conducting a plenary hearing. This appeal followed.

Defendant raises the following contentions on this appeal:

POINT I - THE DEFENDANT'S CLAIMS CONCERNING THE FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF IDENTIFICATION WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 BECAUSE THEY WERE RAISED IN THE CONTEXT OF AN INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT AND THEREFORE WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY [] EQUIVALENT" TO THE IDENTIFICATION ISSUES RAISED ON DIRECT APPEAL.

POINT II - THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL'S DEFICIENT PERFORMANCE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST.

(A) TRIAL COUNSEL'S FAILURE TO MOVE FOR A MISTRIAL AFTER THE DEFENDANT WAS SEEN BY THE JURY IN HANDCUFFS, AND TRIAL COUNSEL'S FAILURE TO SECURE AN APPROPRIATE JURY INSTRUCTION ON THE ISSUE OF IDENTIFICATION RESULTED IN A TRIAL THAT DID NOT PRODUCE A JUST RESULT.

(B) TRIAL COUNSEL'S DEFICIENT PERFORMANCE PREJUDICED THE DEFENDANT.

(C) UNDER R. 3:22-2 CRITERIA, THE DEFENDANT WAS ENTITLED TO A FULL EVIDENTIARY HEARING IN POST-CONVICTION RELIEF.

POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...


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