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State of New Jersey v. Jose Alvarenga

November 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE ALVARENGA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1280.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 2, 2011

Before Judges Fuentes and Graves.

Defendant Jose Alvarenga appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

On May 18, 2006, a jury convicted defendant of second degree conspiracy, N.J.S.A. 2C:5-2; first degree armed robbery, N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and third degree aggravated assault, N.J.S.A. 2C:12-1(b).*fn1 The evidence presented at trial shows that defendant and his co-defendant accosted and robbed a man at gunpoint, taking $550 from his person. The crime was committed inside a house of prostitution. Defendant and his cohort tied up the victim and two other men and left them bound in a room.

On September 15, 2006, the court sentenced defendant to an aggregate term of fifteen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed defendant's conviction and remanded for the court to re-sentence defendant without consideration of aggravating factor number two, N.J.S.A. 2C:44- 1. State v. Alvarenga, No. A-1034-06 (App. Div. March 18, 2008).

Defendant filed this pro se PCR petition on April 20, 2009, alleging ineffective assistance by the attorney assigned to represent him at trial. Specifically, defendant claimed that his assigned trial counsel advised him against testifying in his own defense, despite his lack of any prior criminal involvement. Because he believed his assigned counsel "was not working for [his] interest," he retained private counsel "prior to trial." According to defendant, the trial court denied his request for a "continuance" to permit private counsel to represent him at trial, thus denying his right to be represented by counsel of his own choice. Defendant claimed that if he had been permitted to have "counsel of [his] own choice, [he] would have testified and been acquitted."

The court assigned counsel to assist defendant in prosecuting his PCR petition. PCR counsel filed a brief addressing the grounds defendant raised in his pro se petition and raising other alleged incidents of ineffective assistance by trial counsel. Specifically, PCR counsel argued that trial counsel provided ineffective assistance by failing to challenge: (1) the constitutionality of the interactions between defendant and the police officers who responded to the scene of the robbery; and (2) the admissibility of certain parts of the victim's trial testimony, which allegedly implicated defendant in other crimes in violation of N.J.R.E. 404(b). PCR counsel also argued that even if any one of these missteps, when considered individually, does not present grounds for reversing defendant's conviction, their cumulative effect had the capacity of denying defendant his right to effective assistance of counsel.

After considering the arguments of counsel, the PCR court denied defendant's petition without an evidentiary hearing. Judge Bradley J. Ferencz explained his ruling in an oral opinion delivered on February 19, 2010. Defendant now appeals that ruling, raising the following arguments:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I,

¶ 10.

A. Trial Counsel Was Ineffective By Failing To File A ...


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