NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-02-00113.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Maven.
Defendant Kenneth Green appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury in absentia, defendant was found guilty of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count four); and second-degree possession of a firearm while possessing a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:39-4.1(a) (count five). The same jury, in a bifurcated trial on a separate indictment, also convicted defendant of one count of second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7(b).
The facts underlying these convictions may be briefly stated. On the afternoon of December 24, 2004, Montgomery Township police officers stopped the vehicle defendant was driving because of suspected illegal tinted windows. The front-seat passenger was defendant's girlfriend, Karen Hart, to whom the car was registered. Noticing a strong odor of burnt marijuana, the officer ordered defendant to exit the car and then conducted a search of his person, which uncovered clear plastic bags of cocaine, crack cocaine and marijuana. Hart, the owner of the car, gave consent to search the vehicle, where in a locked glove box, police uncovered a loaded defaced firearm, several small baggies, an extra magazine or clip for the firearm, and a half-full box of ammunition.
Defendant was taken to police headquarters, where he waived his Miranda rights and gave a statement admitting he purchased the drugs found on his person partly to sell and partly to use, and that he had been dealing drugs for a long time to support his habit. He bought the gun for protection about nine months ago out of concern for his safety due to a dispute he had with another drug dealer, who had threatened to kill him after defendant had taken $3, 000 worth of cocaine from him without paying for it. Defendant also bought the two magazines, extra ammunition and trigger lock. He further admitted that he had the only key for the glove box and always kept it locked. He explained that Karen Hart had no idea that guns or drugs were part of his life and would have been very upset if she knew he kept a gun in the glove compartment of her car. Hart was released by the police without charges.
Defendant did not have a permit to carry a handgun. He was also previously convicted of a crime in 1993.
On the State's motion, defendant was found eligible for the imposition of a mandatory term of imprisonment pursuant to N.J.S.A. 2C:43-6(f). After appropriate mergers, defendant was sentenced to an aggregate term of thirteen years with five years of parole ineligibility.
Defendant did not appeal his judgment of conviction, Rule 2:4-1. Instead, on May 22, 2007, defendant filed a pro se application to amend his sentence due to infirmity, Rule 3:21-10(b)(2), which was denied. On August 12, 2010, defendant filed a pro se motion to correct an illegal sentence and a verified PCR ...