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State v. Gonzalez

Superior Court of New Jersey, Appellate Division

June 19, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ANDRE L. GONZALEZ, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-07-2800.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs.

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

Before Judges Sabatino and Maven.

PER CURIAM.

After a 2005 jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1. He was sentenced to a twelve-year term of imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's conviction was affirmed on direct appeal in an unpublished opinion. State v. Gonzalez, No. A-1256-05 (App. Div. Dec. 7, 2007).

In September 2008, defendant filed a petition for post-conviction relief ("PCR"), alleging ineffective assistance of counsel. In particular, defendant contended that his trial attorney failed to conduct an adequate investigation of an alibi defense; failed to perform a DNA analysis of a wig found at the crime scene; improperly advised defendant not to testify on his own behalf; and failed to argue in summation that the State had failed to prove its case beyond a reasonable doubt because the State had never tested the wig for DNA evidence.

The PCR judge, Hon. Richard F. Wells, J.S.C., [1] conducted a multi-day evidentiary hearing at which defendant, his aunt, and defendant's former trial attorney testified. After hearing those witnesses, Judge Wells rejected defendant's PCR petition in all respects. Among other things, Judge Wells found that defendant's proposed alibi witness, his aunt, was not credible. Furthermore, Judge Wells found that the claims of ineffectiveness regarding the wig were procedurally barred, and that no prejudice to defendant was shown because the wig could have been worn by a co-perpetrator.

In his present appeal, defendant argues:

POINT I
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ...

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