On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0881.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 9, 2011 -
Before Judges Cuff and Simonelli.
Defendant Joseph Elchin pled guilty, pursuant to a plea agreement, to second-degree attempted luring or enticing a child by various means, N.J.S.A. 2C:13-6; third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4a; and fourth-degree purchasing a handgun without first securing a permit to purchase. In pleading guilty, defendant admitted he engaged in internet and telephone conversations with a girl whom he reasonably believed to be twelve years old to have a sexual encounter with her,*fn1 agreed to meet her in person for the purpose of engaging in a sexual act, and was arrested while on his way to meet her. Defendant also admitted the police recovered an unregistered shotgun in his home pursuant to a search warrant, and was barred from legally possessing a firearm based on his prior convictions for fourth-degree criminal sexual conduct and second-degree aggravated assault.
Defendant was sentenced to an aggregate five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. Defendant appealed, arguing only that the sentence imposed was excessive. We affirmed.
Defendant thereafter timely filed a petition for post-conviction relief (PCR), arguing, in part, that trial counsel was ineffective because he failed to investigate and raise entrapment and impossibility defenses, invasion of privacy, and violation of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretapping Act), N.J.S.A. 2A:156A-1 to -34. Defendant raised no claims of ineffective assistance of appellate counsel.
In denying the petition without a hearing, the judge concluded, in part: (1) the impossibility defense set forth in State v. Condon, 391 N.J. Super. 609 (App. Div.), certif. denied, 192 N.J. 74 (2007), did not apply because defendant took a substantial step toward the commission of the underlying crime and could be guilty under N.J.S.A. 2C:5-1a(3); (2) defendant failed to specify what trial counsel failed to investigate; (3) the entrapment defense did not apply because the police used tactics approved in State v. Davis, 390 N.J. Super. 573 (App. Div.), certif. denied, 192 N.J. 599 (2007); (4) defendant had no reasonable expectation of privacy when chatting with an undercover officer via the internet and telephone; and (5) the police did not violate the Wiretapping Act. This appeal followed.
On appeal, defendant raises the following contentions:
I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, APPELLATE COUNSEL AND PCR COUNSEL DEPRIVED ELCHIN OF HIS CONSTITUTIONAL RIGHTS AND RENDERED THE PLEA ALLOCUTION AS FUNDAMENTALLY UNRELIABLE.
A. Elchin Was Deprived of His Constitutional Right to the Effective Assistance of PCR Counsel.
B. Elchin Was Deprived of His Constitutional Right to Effective Assistance of Trial Counsel and Appellate Counsel.
C. The Court Should Set Aside Elchin's Plea or Remand This Case for an Evidentiary Hearing Concerning Whether Elchin Received the ...