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State of New Jersey v. Rogelio Tapia

August 13, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROGELIO TAPIA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2491.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 6, 2012

Before Judges Ashrafi and Hayden.

Defendant Rogelio Tapia appeals the March 11, 2010 order denying his second petition for post-conviction relief (PCR). Having considered his arguments in light of the record and the applicable legal principles, we affirm.

The record reveals that on May 12, 2003, a jury convicted defendant, along with his co-defendants Eduardo and Miguel Tapia, of second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-5d. The indictment was based on an incident in which defendant, along with four family members, had lured the victim to a parking lot, forcibly transferred him to another location, and severely beaten him for having an affair with defendant's brother's girlfriend.

On June 18, 2003, defendant received an aggregate sentence of fifteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed the conviction and sentence, arguing that his convictions on the charge of conspiracy to commit kidnapping, possession of a weapon for an unlawful purpose, and possession of a prohibited weapon should be reversed as the verdicts were against the weight of the evidence. We rejected these arguments and affirmed defendant's convictions. State v. Tapia, No. A-1021-03 (App. Div. June 9, 2003), certif. denied, 185 N.J. 295 (2005).

On January 6, 2006, defendant filed his first PCR petition, which the PCR judge denied on January 26, 2007, without an evidentiary hearing. On April 10, 2007, defendant filed an appeal of the denial, raising the following points.

POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. Defendant Was Denied Effective Assistance of Counsel When His Trial Attorney Failed to Object to Prejudicial And Improper Remarks Made by The Prosecutor During His Summation And When Appellate Counsel Failed to Raise This Issue on Direct Appeal.

B. Defendant Was Denied Effective Assistance of Counsel When His Trial Attorney Failed to Object to Misstatements of Law to The Jury During His Summation.

C. Defendant Was Denied Effective Assistance of Counsel When His Trial Attorney Failed to Call Julianna Cohetero as a Witness.

POINT II: THE FIVE-YEAR PAROLE SUPERVISION EXTENDED DEFENDANT'S SENTENCE FROM 15 YEARS TO AN OVERALL 20 YEARS, IN VIOLATION OF APPRENDI, BLAKELY, NATALE, FRANKLIN AND ABDULLAH. WHEREFORE DEFENDANT SHOULD BE RE-SENTENCED TO 10 YEARS WITH THE FIVE-YEAR PAROLE SUPERVISION TO ARRIVE AT THE TERM OF 15 YEARS, IN THE ALTERNATIVE OF THE NERA SENTENCING BEING UPHELD.

POINT III: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE CROSS-EXAMINATION OF HIS MAIN ACCUSER BY THE STATE'S FAILURE TO REVEAL HIS TRUE IDENTITY AND PROVIDE HIS CRIMINAL RECORD FOR IMPEACHMENT ...


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