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State of New Jersey v. John Farkas

December 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN FARKAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-05-0803.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 2011

Before Judges Payne and Simonelli.

Defendant John Farkas appeals from the February 4, 2010 order, which denied his petition for post-conviction relief (PCR). We affirm.

The facts of this case are set forth in our unpublished opinion on defendant's direct appeal, and need not be recited here. State v. Farkas, No. A-2194-07 (App. Div. April 30, 2009), certif. denied, 199 N.J. 541 (2009).

Defendant filed a PCR petition, arguing that trial counsel was ineffective because he failed to file a motion to suppress evidence, pursue a Wade*fn1 hearing, and argue for a judgment of acquittal. Also, as he did in his direct appeal, defendant challenged his sentence and argued that the jury instructions on attempted aggravated assault with a deadly weapon and identification were flawed.

Judge Venable denied the petition. She found that trial counsel was not ineffective in failing to file a motion to suppress because the police properly entered the apartment where defendant was found hiding in the closet under exigent circumstances, and defendant lacked standing to challenge to search because he did not reside in the apartment. Judge Venable also found that trial counsel was not ineffective in failing to request a Wade hearing because three witnesses who had chased defendant from the robbery scene to an apartment where he was found and apprehended positively identified him there. She concluded that "[t]rial counsel correctly and expressly acknowledged that this was not a 'show up' and no good-faith basis for requesting a Wade hearing existed." Judge Venable also concluded that defendant's challenge to the jury instructions and sentence were adjudicated on his direct appeal. This appeal followed.

In this appeal, defendant raises the following arguments:

POINT I THE DEFENDANT IS ENTITLED TO AN EVIDENCE HEARING IN ORDER TO LITIGATE HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED.

A. TRIAL COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO MOVE TO SUPPRESS EVIDENCE UNLAWFULLY SEIZED.

1. THE DEFENDANT HAD STANDING TO CONTEST THE UNLAWFUL SEARCH AND SEIZURE.

2. THE POLICE LACKED PROBABLE CAUSE TO ENTER THE DWELLING AND ...


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