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State of New Jersey v. Kevin Muldrow

December 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN MULDROW, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-12-2035.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2012

Before Judges Sapp-Peterson and Haas.

Defendant Kevin Muldrow appeals from an April 12, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged in a five-count Hudson County indictment with possessing a handgun without a permit, N.J.S.A. 2C:39-5b (count one); possessing a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); eluding, N.J.S.A. 2C:29-2b (count three); certain persons not to have a weapon, N.J.S.A. 2C:39-7b (count four); and hindering apprehension, N.J.S.A. 2C:29-3b(4).

Pursuant to a plea bargain, defendant pled guilty to a second-degree certain persons not to have a weapon charge, N.J.S.A. 2C:39-7b, and the State agreed to recommend that defendant be sentenced to five years in prison, with a five-year period of parole ineligibility. On February 17, 2010, Judge Kevin G. Callahan sentenced defendant in accordance with the terms of the negotiated plea.*fn1 Defendant did not file a direct appeal from his conviction and sentence.

On May 20, 2010, defendant filed a petition for PCR. He alleged he was denied the effective assistance of counsel because his trial attorney failed to investigate whether the handgun was operational, whether his fingerprints were on the weapon, and whether any witnesses could be identified who could exculpate defendant or provide "mitigating information." On March 17, 2011, Judge Callahan held oral argument and determined an evidentiary hearing was not required. On April 12, 2011, the judge issued a comprehensive written opinion in which he denied defendant's petition for PCR.

Judge Callahan's opinion sets forth the facts underlying the offense for which defendant was convicted. On June 22, 2007, the police received a tip from a confidential informant that defendant was in possession of several firearms and that he drove a burgundy Chrysler 300. On June 26, 2007, a number of officers observed defendant driving that vehicle and attempted to pull him over. Defendant refused to stop and a pursuit began. During the pursuit, two officers saw defendant throw an automatic handgun from his vehicle. The handgun was recovered and the police were ultimately able to apprehend defendant.

During his plea colloquy, defendant told Judge Callahan the handgun was a "real working weapon." He also admitted he had previously been convicted of a predicate offense, which made him a "certain person" who was prohibited from possessing a handgun under N.J.S.A. 2C:39-7b. At sentencing, defendant again acknowledged the handgun was "operable" and that he was not asking for a hearing on that issue. Based upon defendant's testimony, Judge Callahan found no basis for defendant's claim that his trial counsel was ineffective and he denied defendant's petition for PCR. This appeal followed.

II.

On appeal, defendant raises the ...


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