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State of New Jersey v. Benjamin Vargas

July 22, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN VARGAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-02-0189.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 7, 2011

Before Judges Messano and Waugh.

Defendant Benjamin Vargas appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points on appeal:

POINT ONE

THE PCR COURT ERRED WHEN IT RULED THAT DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS PROCEDURALLY BARRED BY R. 3:22-3OR 3:22-4

POINT TWO

THE FAILURE OF TRIAL COUNSEL TO PROVIDE DEFENDANT WITH A COMPLETE COPY OF THE DISCOVERY BEFORE THE PLEA CUT OFF, AND TO INSIST THE COURT CONDUCT A FORMAL PRETRIAL CONFERENCE IN OPEN COURT AND HEAR PRETRIAL MOTIONS BEFORE PLEA NEGOTIATIONS WERE CUT OFF, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

POINT THREE

THE INCLUSION OF INVESTIGATION REPORTS GENERATED BY THE STATE IN DEFENDANT'S PRESENTENCE REPORT WITHOUT DEFENDANT'S CONSENT, VIOLATED DEFENDANT'S RIGHT TO TRIAL BY JURY, AND STATE V. NATALE, AND REQUIRES A REMAND FOR A NEW SENTENCE HEARING (NOT RAISED BELOW)

POINT FOUR

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

We have considered these arguments in light of the record and applicable legal ...


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