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State v. Rodriguez

October 27, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SERGIO RODRIGUEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-01-0102.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2010

Before Judges Lisa, Reisner and Sabatino.

Defendant, Sergio Rodriguez, appeals from the August 4, 2008 order denying his petition for post-conviction relief (PCR). Defendant was convicted of felony murder, N.J.S.A. 2C:1- 3(a)(3), and other related offenses. He was sentenced on July 14, 2000 to thirty years imprisonment without parole for felony murder. He received consecutive sentences for some other offenses, and is serving an aggregate term of thirty-eight-andone-half-years imprisonment subject to a thirty-six-year parole disqualifier.

We affirmed defendant's conviction and sentence, State v. Rodriguez, No. A-1894-00 (App. Div. February 17, 2004), and the Supreme Court denied defendant's petition for certification on June 4, 2004. State v. Rodriguez, 180 N.J. 452 (2004). In May 2005, defendant filed a pro se PCR petition, which was dismissed without prejudice on May 11, 2007.*fn1 The petition was reinstated on May 28, 2008. After hearing oral argument on August 4, 2008, the judge denied the petition and declined to conduct an evidentiary hearing. The judge issued an order to that effect, and this appeal followed.

In the brief filed by his attorney, defendant argues:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to permit defendant to testify at the Miranda*fn2 hearing.

B. Trial counsel failed to move to exclude mention of defendant's nickname from the trial.

C. Trial counsel failed to move to dismiss the case on the basis of the [S]tate's opening.

D. Trial counsel failed to move to sever defendant's trial from that of his co-defendants.

E. Trial counsel failed to investigate potential witnesses to exculpate defendant.

F. Trial counsel failed to object to the testimony of Alfonso Siquencia.

G. Trial counsel failed to conduct himself in a professional manner in front of the jury.

H. Trial counsel failed to properly prepare for trial.

I. Trial counsel failed to properly advise defendant that he should be present at trial.

J. Trial counsel failed to argue self-defense.

K. Trial counsel failed to move for a mistrial.

L. Trial counsel failed to object to the

[S]tate's summation.

M. Trial counsel was ineffective with regard to the charge and recharge to the jury.

N. Trial counsel was ineffective in failing to argue effectively at sentencing.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR.

POINT IV

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED [NOT PRESENTED BELOW].

POINT V

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4. POINT VII THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5. POINT VIII THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

In a supplemental pro se brief, defendant further argues:

POINT I

THE COURT SHOULD REMAND THIS MATTER TO THE LAW DIVISION FOR NEW PROCEEDINGS SINCE PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO COMPLY WITH R. 3:22-6(d) AND FOR FAILING TO OBTAIN AND REVIEW DEFENDANT'S TRIAL FILE PRIOR TO SUBMITTING DEFENDANT'S PCR BRIEF TO THE COURT.

POINT II

STATE V. A.G.D.*fn3 WAS NEVER RULED TO BE APPLIED PURELY PROSPECTIVELY AS IT WAS APPLIED TO A.G.D. - THE RULING OF A.G.D. SHOULD BE APPLIED IN THIS CASE AS IT WAS IN THE PIPELINE AND APPLYING THE RULING RETROACTIVELY TO PIPELINE CASES WOULD NOT BE A BURDEN UPON THE ADMINISTRATION OF JUSTICE.

We reject these arguments and affirm.

I.

Defendant, along with his two co-defendants, Luis DeJesus and Alexis DeJesus, and others became engaged in an altercation with another group of individuals on July 25, 1998 in Newark. One member of the other group was stabbed to death, and two others were stabbed and injured. Defendant admitted to the police that he was present at the scene, although he sought to minimize his involvement; the trial court denied his motion to suppress that statement after a Miranda hearing. Defendant and his co-defendants were tried jointly. All ...


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