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State of New Jersey v. Joel Velez

April 20, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOEL VELEZ, A/K/A ZIMMER, SIMMER, SIM, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94-03-0324.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 8, 2010

Before Judges Axelrad and R. B. Coleman.

Defendant Joel Velez appeals from a September 28, 2007 order denying his petition for post-conviction relief (PCR). He asserts he made a prima facie showing that his constitutional rights were violated by the PCR court's rulings and that he was denied a fair trial due to ineffective assistance of trial and PCR counsel. We have considered his arguments in light of the facts and applicable law, and we affirm the order denying his petition.

A Passaic County grand jury returned an indictment charging defendant with two counts of knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) (counts one and two); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts two and four); third-degree possession of an assault firearm without a license, N.J.S.A. 2C:39-5(a) (count five); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count seven).

Less than two weeks before trial, defendant's attorney moved for a psychiatric examination of defendant to determine his competency to stand trial. The court granted that motion and defendant was examined by the consulting psychiatrist for the Passaic County Jail, Dr. Joel Federbush, who opined that defendant was competent to stand trial. Based on that opinion, the court ruled defendant was competent to stand trial.

Thereafter, defendant filed a motion requesting a continuance of the trial to have defendant examined by a defense psychiatrist to determine defendant's sanity at the time of the crime and his competency to stand trial. The trial court denied the motion. Defendant moved for leave to appeal the motion, and we denied leave to appeal.

Following a trial before Judge Ronald B. Sokalski and a jury, defendant was found guilty of two counts of aggravated manslaughter (the lesser-included offenses counts one and two), two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(a), (f); and one count of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1). He was found not guilty on two counts of first-degree murder and an additional count of fourth-degree aggravated assault.

At sentencing, the convictions for possession of a weapon for unlawful purpose (counts two and four) were merged with the aggravated manslaughter convictions (counts one and three). The court sentenced defendant on counts one and three to consecutive thirty-year terms of imprisonment, with fifteen years of parole ineligibility. On counts five and six, the court sentenced defendant to concurrent five-year terms of imprisonment with two and one-half year periods of parole ineligibility to run concurrent with the aggravated manslaughter conviction on count one.

The convictions arose out of a fight between rival groups from the Dominican Republic and Puerto Rico that led to a shooting from the rooftop of defendant's apartment building in Paterson, New Jersey.*fn1 Defendant shot several rounds from a semiautomatic weapon into the street where a crowd had gathered. Two of the members of the group from the Dominican Republic, Havier Diaz and Duarte Vargas, were hit with bullets. Diaz died within minutes and Vargas died several days later.

Defendant appealed his conviction and sentence. In his direct appeal, defendant challenged the trial court's finding of competency to stand trial; challenged, as plain error, a jury instruction; and argued excessive sentencing. In an unpublished opinion, State v. Velez, No. A-1750-00 (App. Div. May 22, 2003), we affirmed defendant's convictions. The Supreme Court denied defendant's petition for certification. State v. Velez, 177 N.J. 577 (2003).

Thereafter, defendant filed a pro se application for PCR. Later, defendant, assisted by counsel, submitted a supplemental petition for PCR. After a hearing, Judge Sokalski denied the petition. Defendant filed this appeal, ...


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