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State of New Jersey v. Javier Roman

January 8, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAVIER ROMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-02-0680.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 2012

Before Judges Axelrad and Sapp-Peterson.

Defendant appeals the denial of his petition for post-conviction relief (PCR). We affirm.

Defendant was arrested on August 30, 2007, following a consensual search of his residence after defendant, along with his co-defendant, George Nieves, was suspected of being involved in narcotics activities based upon a surveillance operation. Defendant initially gave police permission to search his vehicle, in which he had been transporting Nieves during the surveillance operation, but no contraband was found. When asked whether he would consent to the search of his residence, defendant declined to give his consent. After learning that Nieves had been arrested and after further discussion with the police, he told the officers he wanted to cooperate and consented to the search of his residence. The search yielded a kilogram of cocaine, digital scales, two handguns, and a large amount of currency.

In an eleven-count indictment, of which eight counts related to defendant, a grand jury charged defendant with narcotics and weapons offenses. On September 16, 2008, defendant, as a result of a negotiated plea agreement, pled guilty to first-degree distribution of a controlled dangerous substance. During the plea colloquy, defendant acknowledged his culpability, expressed his satisfaction with his plea counsel, and advised the court that he was entering the plea knowingly, voluntarily, and that he had answered the questions on the plea form truthfully. The State recommended a fifteen-year custodial sentence, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision. In addition, the State agreed to dismiss the remaining counts of the indictment charged against defendant. On January 16, 2009, the court sentenced defendant in accordance with the plea agreement and, in addition, imposed mandatory fines and penalties as well as the forfeiture of $11,000. Defendant filed no appeal.

On June 15, 2011, defendant filed an unverified PCR petition followed by the subsequent filing of a verified petition on September 16, 2011. Judge Irvin J. Snyder, without conducting oral argument, issued an initial written opinion in advance of the return date of the motion and before receiving defendant's reply brief. Judge Snyder subsequently acknowledged receipt of the reply brief but advised all parties that the reply brief had not altered his initial decision.

Judge Snyder found defendant's contention that the police officers' threats forced him to consent to the search of his residence was unsupported by any evidence, including an affidavit. In contrast, the judge noted the State attached a copy of the transcript of police questioning of defendant following his arrest and defendant's responses to those questions. The transcript disclosed that defendant not only consented to the search of his residence but also indicated that he had not been threatened and that no promises had been made to him by police.

Judge Snyder additionally found that assuming there had been no consent, the search of the residence would have inevitably occurred because police "had sufficient probable cause to obtain a valid search warrant to search the defendant's home" and, as such, "a motion to suppress the evidence would likely not have been meritorious." Likewise, Judge Snyder reasoned that had a motion to withdraw defendant's guilty plea been filed, the court would still have been inclined to deny any such application because defendant would have failed to meet any of the standards for withdrawal of his guilty plea under State v. Slater, 198 N.J. 145, 157-58 (2009). This appeal ensued.

On appeal, defendant raises the following points for our consideration:

POINT I

FAILURE TO MAKE A MERITORIOUS MOTION TO SUPPRESS MAY CONSTITUTE INEFFECTIVE ...


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