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State v. Peralta

November 22, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
YOAN PERALTA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1559.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 09, 2010

Before Judges Parrillo and Yannotti.

Defendant Yoan Peralta appeals from an order entered by the Law Division on December 12, 2008, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Passaic County Indictment No. 05-11-1559-I, with fourth-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count one); two counts of third-degree possession of a CDS with intent to distribute within 1000 feet of school property; N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (counts two and six); two counts of third-degree possession of a CDS with intent to distribute within 500 feet of public housing, park or building N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5(a) (counts three and seven); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count four); and second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five).

At trial, the State presented evidence which established that on the evening of May 20, 2005, three officers of the Passaic Police Department were on routine patrol in a police vehicle at a point within 1000 feet of Public School #11. The officers observed three men and a woman on the street corner drinking beer. The officers exited their vehicle and approached the group.

Defendant was one of the persons in the group, as was co-defendant Christian Rolon (Rolon). Officer John Vaccaro (Vaccaro) observed defendant toss a brown paper bag to the ground. Rolon started to walk away. Officer Marvin Eugene (Eugene) followed Rolon and saw him throw a clear plastic bag to the ground. Eugene picked up the bag, which contained what appeared to be crack cocaine, and arrested Rolon.

Vaccaro then picked up the brown paper bag that defendant had discarded. The bag contained nine small plastic baggies of marijuana and six plastic bags of marijuana laced with PCP. Officer Raymond Rodriguez (Rodriguez) arrested defendant and patted him down. Rodriguez found eighty-three small, unused plastic bags in defendant's jacket pocket. The baggies were identical to those found in the brown paper bag that defendant had discarded.

The jury found defendant guilty on counts one, two, six, four and five. At sentencing, the trial court granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f) and imposed, after appropriate mergers, an aggregate twelve-year term of incarceration, with a four-year period of parole ineligibility. Defendant appealed and we affirmed his conviction. State v. Peralta, No. A-3731-06 (App. Div. Mar. 4, 2008).

On May 19, 2008, defendant filed a pro se petition for PCR. PCR counsel was appointed and filed a brief on October 11, 2008, in which he argued that: 1) defendant's claims were not barred by the court rules; 2) defendant was denied the effective assistance of trial counsel; and 3) defendant should be afforded an evidentiary hearing on his petition.

The PCR court considered the matter on December 12, 2008 and placed its decision on the record. The court concluded that defendant had not been denied the effective assistance of counsel and an evidentiary hearing was not required. The court entered an order dated December 12, 2008, denying PCR. This appeal followed.

Defendant raises the following arguments for our ...


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