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State v. Cordero

October 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MISAEL CORDERO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-12-3513.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2010

Before Judges Fuentes and Gilroy.

Defendant Misael Cordero appeals from the August 26, 2008 order that denied his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count one); murder, N.J.S.A. 2C:11-3a (count two); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); felony murder, N.J.S.A. 2C:11-3a(3) (count four); first-degree robbery, N.J.S.A. 2C:15-1 (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven). On July 31, 2002, the court merged the convictions on counts one, four, and seven with the conviction on count two, and merged the conviction on count three with the conviction on count five. Then the court dismissed the convictions on counts five and six based on the statute of limitations, leaving only the conviction on count two for sentencing. On count two, the court sentenced defendant to a life term of imprisonment with a thirty-year period of parole ineligibility, to run concurrent with a sentence defendant was then serving. The court also awarded defendant 3,247 days of gap-time credit pursuant to N.J.S.A. 2C:44-5b(2). Because the trial facts were discussed at length in our prior opinion, State v. Cordero, No. A-5849-02 (App. Div. August 15, 2006), it is unnecessary for us to detail the evidence against defendant for these crimes.

On direct appeal, we affirmed the judgment of conviction and the sentence imposed. Id. (slip op. at 33). However, we granted defendant leave to file a motion for re-sentencing. Id. (slip op. at 25-26). On December 8, 2006, the Supreme Court denied defendant's petition for certification. 189 N.J. 103 (2006). On March 19, 2007, the trial court denied defendant's motion seeking reconsideration of his sentence.

On May 3, 2007, defendant filed a pro se petition for PCR arguing that he was denied ineffective assistance of trial counsel and appellate counsel. Defendant contended that his trial attorney failed to: timely meet with him pre-trial to prepare a proper defense to the indictment; review pre-trial discovery with him; discuss trial procedure and present him with a coherent defense plan; investigate all possible defenses; investigate potential witnesses who may have been able to provide favorable testimony to him; obtain "helpful information/records" for use in his defense; object to co-defendants Javier Santiago's and Francisco Ruiz's trial testimony; and request jury instructions concerning the jury's consideration of the co-defendants' guilty pleas. Defendant contended that his appellate counsel failed to raise the aforementioned issues on appeal. In December 2007, assigned counsel filed a supplemental brief in support of defendant's petition reasserting the arguments raised by defendant. In October 2007, and January 2008, defendant filed two pro se supplemental briefs in support of his petition expounding upon his prior arguments.

On May 2, and June 27, 2008, the trial court conducted an evidentiary hearing on the petition. On August 26, 2008, Judge Goldman entered an order supported by a twenty-one page written opinion denying the petition.

On appeal, defendant argues:

POINT I. THE COURT ERRED IN DENYING PCR BECAUSE TRIAL COUNSEL'S FAILURE TO ADEQUATELY PREPARE FOR TRIAL, PURSUE POTENTIAL DEFENSES, AND INVESTIGATE POSSIBLE WITNESSES DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II. THE ORDER DENYING PCR MUST BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO INADMISSIBLE EVIDENCE AND TO REQUEST A CRITICAL JURY INSTRUCTION DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III. APPELLATE COUNSEL'S FAILURE TO RAISE VIABLE ISSUES ON APPEAL DEPRIVED DEFENDANT OF HIS RIGHT TO THE ...


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