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State of New Jersey v. Kevin D. Hayes

December 19, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN D. HAYES, A/K/A DARRYL BRIDGES, A/K/A DARVIN ELDER, A/K/A DARRYL K. HAYES, A/K/A KEVIN D. HAYES, A/K/A RAHEEM HAYES, A/K/A RAHIM HAYES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 01-11-1281 and 01-11-1285.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 1, 2011

Before Judges Yannotti and Espinosa.

Defendant Kevin D. Hayes appeals from an order entered by the Law Division on June 3, 2010, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Indictment No. 01-11-1281 with second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); fourth-degree unlawful possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count five); and third-degree criminal restraint, N.J.S.A. 2C:13-2 (count six). Defendant also was charged under Indictment No. 01-11-1285 with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

On March 11, 2004, defendant pled guilty to armed robbery, as charged in count two of Indictment No. 01-11-1281, and certain persons not to have weapons, as charged in Indictment No. 01-11-1285. In addition, he pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, as charged in count three of Indictment No. 04-02-0189. The State agreed to recommend a sentence of fifteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).

The trial court sentenced defendant to fifteen years on the armed robbery charge, subject to the NERA period of parole ineligibility, and a concurrent term of ten years on the certain persons charge. Defendant also was sentenced to a concurrent five-year term for the CDS offense. Thereafter, defendant filed a motion to correct the sentence imposed for the armed robbery. The trial court entered an order dated March 30, 2007, denying that motion. Defendant filed an appeal, but the appeal was withdrawn.

Defendant then filed a pro se PCR petition, which was dated March 19, 2009. He alleged that he was denied the effective assistance of counsel. The court appointed PCR counsel, who filed a brief in support of the petition. Counsel argued that trial counsel was ineffective because he failed to: 1) pursue a speedy trial; 2) seek a hearing to suppress the statements defendant made to the arresting officer; 3) seek a hearing to challenge the victim's identification of defendant as the perpetrator of the robbery; 4) file a notice of alibi defense; and 5) adequately investigate the case.

Counsel further argued that a new trial should be ordered because the State allegedly withheld evidence favorable to defendant, and because the trial court had denied defendant his right to a fair trial by failing to take notice of the State's discovery violations, which hampered defendant's right to present a clear defense. Counsel sought an evidentiary hearing on the petition.

The PCR court considered the petition on June 3, 2010. The court decided that an evidentiary hearing was not required and, after hearing the arguments of counsel, placed its decision on the record. The court found that defendant's speedy trial claim was without merit. The court additionally determined that defendant had not been denied the effective assistance of counsel, and defendant had not established that the State failed to provide him with exculpatory evidence.

The PCR court entered an order dated June 3, 2010, denying defendant's petition. This appeal followed. Defendant raises the following arguments for our consideration:

POINT ONE

THE TRIAL COURT ERRED BY REFUSING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING AND BY DENYING DEFENDANT'S ...


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