On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-01786-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Koblitz.
Defendant Michael E. Dec appeals the trial court's August 23, 2010 order denying his motion to retract his guilty plea and rejecting his petition for post-conviction relief (PCR) without an evidentiary hearing. On December 11, 2008, defendant pled guilty to Union County Accusation 08-12-01786 charging him with second-degree vehicular homicide. N.J.S.A. 2C:11-5. He also entered a guilty plea to a motor vehicle summons charging him with driving while intoxicated. N.J.S.A. 39:4-50. As part of the State's plea agreement, the second-degree charges of leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1, and eluding the police, N.J.S.A. 2C:29-2(b), as well as the motor vehicle violations of leaving the scene of an accident, N.J.S.A. 39:4-129, and reckless driving, N.J.S.A. 39:4-96, were dismissed by the State after sentencing. The State agreed that defendant would be sentenced within the third-degree range. Pursuant to the plea agreement, defendant was sentenced on February 6, 2009, to four years in prison subject to the eighty-five percent period of parole ineligibility specified in the No Early Release Act (NERA), N.J.S.A. 2c:43-7.2.
Defendant claims his attorney was ineffective in not allowing him to review every page of the State's discovery in a timely manner. He indicates he would have proceeded to trial on all charges had he been given the assistance of competent counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The State's documentary evidence reveals the following facts. On April 17, 2007, at 2:19 a.m., while driving southbound on Routes 1 & 9 in Elizabeth, defendant's 2001 silver Mercury Grand Marquis struck and killed the victim. A passenger in a nearby car who witnessed the accident told the police that defendant was traveling over fifty miles per hour and neither attempted to avoid the pedestrian nor stopped after hitting her.
Defendant fled the scene with the victim's malt liquor can stuck in his car's grill. He sped the wrong way down a one-way street. Instead of stopping when police activated their lights and sirens, he accelerated. Defendant's car had significant front-end damage, the windshield was shattered and the passenger side airbag was deployed. After his arrest, defendant had a blood alcohol content of 0.136%.
The victim was crossing in a crosswalk, but against the light, with a malt liquor can in her hand. The victim had a blood alcohol content of 0.075% and trace amounts of cocaine in her system. According to the autopsy report, a radio with earphones was in her possession when she died.
At his guilty plea, defendant testified under oath as follows:
Q Mr. Dec, I direct your attention to April 17,'08, in the City of Elizabeth, and I ask you to recall that evening.
Q You were operating a motor ...