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State of New Jersey v. Nelson Garcia

March 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NELSON GARCIA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-04-0398.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 9, 2010 - Decided Before Judges Payne and Baxter.

Defendant, Nelson Garcia, appeals from an order denying his petition for post-conviction relief (PCR) as untimely. On appeal, he raises the following issues:

POINT I

THE COURT'S RULING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED BY THE 5 YEAR TIME BAR OF R. 3:22-12 WAS CONTRARY TO THE CRITERIA CONTROLLING THE "EXCUSABLE NEGLECT" EXCEPTION.

POINT II TRIAL COUNSEL'S FAILURE TO PROVIDE DR. WEISS WITH THE DEFENDANT'S MENTAL HEALTH RECORDS IN ORDER TO PRESENT AND DEVELOP A DIMINISHED CAPACITY DEFENSE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III DEFENDANT'S PETITION WAS NOT PROCEDURALLY BARRED BY R. 3:22-12 BECAUSE A SENTENCE THAT IS IMPOSED WITHOUT THE COURT CONSIDERING ALL APPLICABLE MITIGATING FACTORS IS ILLEGAL SINCE IT IS NOT IN ACCORDANCE WITH THE SENTENCE AUTHORIZED BY LAW.

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

POINT V DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

The other issues to which reference is made in Point V are the following:

POINT I

THE TRIAL COURT'S REFUSAL TO PERMIT DR. WEISS TO TESTIFY DENIED MR. GARCIA HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO COMPULSORY PROCESS, TO PRESENT A DEFENSE, TO DUE PROCESS OF LAW AND TO A FAIR TRIAL. U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I PARS. 1, 9, AND 10.

POINT II THE PROSECUTOR'S REFERENCE IN THE PRESENCE OF THE JURY TO A PSYCHIATRIC EVALUATION BARRED FROM BEING ENTERED INTO EVIDENCE SO SEVERELY PREJUDICED THE JURY AND VIOLATED THE RULES OF ...


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