On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-04-0540.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2011 Before Judges Baxter and Koblitz.
Defendant Franky Muniz appeals from an October 3, 2008 Law Division order denying his petition for post-conviction relief (PCR). He is serving an extended-term sentence of life imprisonment with a twenty-five year period of parole ineligibility following his conviction on the first-degree crime of being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. The judge sentenced him to a consecutive life term, also with a twenty-five year parole ineligibility period, on a charge of first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5. This was also an extended-term sentence. In an unpublished opinion, we affirmed defendant's conviction but remanded for reconsideration of the sentences imposed to enable the judge to explain his reasons for imposing a discretionary extended term sentence and a consecutive sentence. State v. Muniz, No. A-6630-03 (App. Div. December 18, 2006) (slip op. at 6). The Supreme Court denied certification. State v. Muniz, 191 N.J. 316 (2007). Following our remand, the Law Division imposed the same sentence it had originally imposed. Defendant did not appeal the resentence.
On appeal from the denial of PCR, defendant raises the following claims:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL FREE FROM INCOMPLETE AND INADEQUATE JURY INSTRUCTIONS; FREE FROM A MISAPPLICATION OF THE "OPENING THE DOOR" DOCTRINE; AND FREE FROM A PREJUDICIAL OPINION OF A NON-EXPERT; WAS VIOLATED.
II. SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
III. THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
(A) Petitioner's Attorney Rendered Ineffective Assistance of Counsel by Failing to File a Motion to Suppress Regarding Lack of Scientific Testing of the Evidence. The Evidence was Insufficient to Support a Conviction Depriving Defendant of His Federal and State Constitutional Rights. The Verdict was Against the Weight of the Evidence, Therefore a New Trial Must be Granted.
(B) The Defendant's Sentence is Excessive.
(C) Petitioner's Attorney Rendered Ineffective Assistance of Counsel by Failing to Subpoena a Drug Expert Witness.
(D) Petitioner's Claims are Not Procedurally Barred.
(E) Petitioner's Attorney Rendered Ineffective Assistance of Counsel by Failing to Move For a State v. Driver[, 38 N.J. 255, 287-88 (1962),] hearing.
IV. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH ...