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State of New Jersey v. Carlo Cardaci

May 11, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARLO CARDACI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 03-01-0096 & 03-06-0778.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 1, 2012 --

Before Judges Baxter and Nugent.

Defendant Carlo Cardaci*fn1 appeals from an August 11, 2010 Law Division order denying his petition for post-conviction relief (PCR). We affirm substantially for the reasons expressed by Judge Den Uyl in his comprehensive and well-reasoned written opinion of August 11, 2010. To the extent defendant raises on appeal PCR claims that he did not present in the Law Division, we decline to entertain them.

I.

On November 9, 2004, defendant appeared before Judge Turnbach and agreed to enter a plea of guilty to thirty counts of Indictment No. 03-01-0096, namely, twenty-nine counts of third-degree burglary and third-degree theft, and one count of second-degree burglary with a weapon. On Indictment No. 03-06-0778, defendant pled guilty to four counts of third-degree unlawful possession of a weapon and four counts of second-degree certain persons not to possess weapons.

In entering his pleas of guilty, defendant expressly acknowledged that he was subject to any lawful sentence up to and including the maximum sentence.*fn2 He also acknowledged that the State "reserved its right to seek an extended term, to seek a parole disqualifier, and to speak at sentencing." In return for defendant's pleas of guilty, the State agreed to dismiss the charges against defendant's girlfriend, Monica Colon-Shird, at the time of sentencing.

On December 10, 2004, after granting the State's motion to sentence defendant to an extended term of imprisonment, the judge imposed an aggregate sentence on the two indictments of thirty years imprisonment subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA). After two sentencing remands, a different judge imposed the same sentence that Judge Turnbach had imposed on December 10, 2004.

Defendant thereafter filed a PCR petition in which he asserted that trial counsel rendered ineffective assistance by: 1) erroneously informing defendant that, as part of the plea agreement, he would receive a sentence of no more than twenty years, when, in fact, the judge imposed a thirty-year NERA term; 2) failing to review the discovery documents with defendant prior to trial; 3) failing "to prepare and advise [defendant] on the evidence the State anticipated using at trial, [which resulted in] an unknowing and involuntary plea."

Defendant also asserted he was entitled to relief because:

4) the "trial court refused to afford [him] a suppression hearing prior to jury selection"; 5) "[o]ver the course of a 10-12 hour interrogation, [he] was repeatedly threatened with the arrest of his significant other, Ms. Colon, who had nothing to do with [the] case"; 6) the police and prosecution "fabricated evidence against Ms. Colon to obtain an arrest and subsequent indictment" of defendant; and 7) the prosecutor failed to advise defendant "of sentencing mergers that would have reduced real time consequences." Finally, defendant asserted that he satisfied the four-prong test articulated in State v. Slater, 198 N.J. 145, 157-58 (2009) for the withdrawal of his guilty plea, and the judge erred by holding to the contrary.

Judge Den Uyl conducted a hearing on defendant's PCR petition, and on August 11, 2010, issued a seventeen-page written decision in which he concluded that defendant had not established a prima facie case of ineffective assistance of counsel and was not entitled to an evidentiary hearing. The judge also rejected defendant's Slater motion. In particular, the judge determined that defendant's plea was knowing and voluntary, defendant had been fully advised of the ramifications of his open plea of guilty, and defendant failed to satisfy the requirements of Slater, ibid., for the withdrawal of his guilty pleas.

As for defendant's remaining claims, the judge rejected them as the "bald assertions" that we held in State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), were insufficient to support a PCR claim. The judge observed that defendant had made "bare allegations without providing specific details on how, when, why and where counsel made errors or omissions." He held that "[w]hen the alleged errors . . . are considered individually or in the aggregate, . . . defendant has failed to explain . . . or establish how or why he was prejudiced or there ...


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