February 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NAJA CUMMINGS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 02-03-0342 and 03-04-0316.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011
Before Judges Lisa and Sabatino.
In this pro se appeal, defendant Naja Cummings, who was convicted in 2003 of second-degree robbery, aggravated assault, and other various crimes, seeks review of the Law Division's denial of his motion to withdraw his guilty plea respecting certain of those offenses and to correct an allegedly illegal sentence.
On the brink of trial scheduled in November 2003, defendant entered into a comprehensive plea bargain arising out of six separate indictments in Union County. Consistent with that plea agreement, he received an aggregate sentence of twelve years, of which he was required to serve 85% of an eight-year portion of that sentence without parole under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. His sentence was upheld on direct appeal on the excessive sentencing ("SOA") calendar in an order issued on February 10, 2005. The Supreme Court thereafter denied certification. State v. Cummings, 183 N.J. 589 (2005).
Defendant then filed a petition for post-conviction relief ("PCR"), seeking to withdraw his guilty pleas, based upon a claim that the factual bases were inadequate and that he had not been properly informed of the mandatory parole supervision period under NERA. The trial court denied PCR relief. On a second SOA calendar, this court affirmed the denial of the PCR concerning his sentence, in an order issued on August 20, 2008.
The Supreme Court again denied certification. State v. Cummings, 197 N.J. 16 (2008).
Following these unsuccessful efforts to obtain relief with the assistance of counsel, defendant returned to the Law Division in 2009 with a pro se motion to withdraw his guilty plea and to correct an allegedly illegal sentence with respect to the two discrete indictments (02-03-0342 and 03-04-0316) that are the subject of this appeal. The Law Division judge denied that application in a letter decision, finding that the four factors under State v. Slater, 198 N.J. 145, 157-58 (2008), to allow a belated plea withdrawal had not been demonstrated, including a colorable assertion of actual innocence.
On appeal, defendant now raises the following points:
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA AND PETITION TO CORRECT ILLEGAL SENTENCES WHERE THE FACTUAL BASES ARE UNSUPPORTED BY THE EVIDENCE, WHICH RENDERS THE CONVICTIONS AND SENTENCES ILLEGAL.
a. The elements of robbery were not met.
b. The police reports were falsified.
DEFENDANT'S FACTUAL BASES WERE UNSUPPORTED BY THE EVIDENCE AND COUNSEL WAS INEFFECTIVE FOR ALLOWING DEFENDANT TO PLEAD GUILTY AGAINST THE WEIGHT OF THE EVIDENCE.
THE SENTENCES ARE ILLEGAL AS THE SECOND DEGREE CONVICTIONS ARE UNSUPPORTED BY THE EVIDENCE.
DEFENDANT WAS ILLEGALLY ARRESTED AND DETAINED WITHOUT DUE PROCESS IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION PARALLEL TO THIS STATE'S CONSTITUTION ART. I, PAR. 7, REQUIRING SUPPRESSION OF THE FRUITS FROM THE SEARCH CONDUCTED INCIDENT TO THAT DETENTION.
We have fully considered these arguments. Having done so, we affirm the Law Division's denial of defendant's application, substantially for the reasons expressed in Judge Joseph P. Donohue's letter opinion of August 26, 2009. Insofar as defendant raises for the first time on this appeal a claim that his arrest and the ensuing search were unconstitutional, that claim is procedurally barred, see State v. Crawley, 149 N.J. 310, 316 (1997), and, moreover, it is not shown to have merit. See R. 2:11-3(e)(2).
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