NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 23, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-01-0058.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Melissa Szymansky, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Espinosa and Hoffman.
Defendant Aston Sappe appeals from the August 18, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On June 9, 2009, a Hudson County grand jury returned three indictments against defendant, two of which included charges against co-defendants. The first indictment, an eleven-count indictment, charged defendant with: distribution of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count one); distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two); two counts of possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (counts five and seven); two counts of possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts six and eight); possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count nine); possession of a firearm with the purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a (count ten); and possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1a (count eleven).
The second indictment charged defendant with one count of tampering with evidence, N.J.S.A. 2C:28-5a.
The third indictment, a fifteen-count indictment, charged defendant with: possession of cocaine, N.J.S.A. 2C:35-10a(1) (count five); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count six); possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count seven); possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count eight); receiving a stolen motor vehicle, N.J.S.A. 2C:20-7 (count nine); unlawful possession of an automobile with altered identification, N.J.S.A. 2C:17-6n (count ten); possession of a false motor vehicle registration, N.J.S.A. 2C:21-2.1d (count eleven); obstruction of the administration of law, N.J.S.A. 2C:29-1a (count twelve); preventing the effectuation of a lawful arrest by flight, N.J.S.A. 2C:29-2a (count thirteen); and endangering the welfare of a child, N.J.S.A. 2C:24-4a (count fourteen).
On October 8, 2009, pursuant to a negotiated plea agreement, defendant pled guilty to counts seven and eleven of the first indictment, the sole count of the second indictment, and counts seven and eleven of the third indictment. In exchange, the State agreed to dismiss the remaining charges against defendant and to recommend a ten-year prison sentence. In providing a factual basis for his plea, defendant testified, among other things, that Hudson County Prosecutor's Office investigators searched his home with his consent, where they found cocaine and a firearm. Additionally, defendant testified that no one had pressured him into pleading guilty. Judge Kevin Callahan accepted defendant's plea.
On December 4, 2009, in accordance with the plea agreement, Judge Callahan sentenced defendant to ten years imprisonment with a three year period of parole ineligibility and imposed appropriate fines and penalties. Defendant did not file a direct appeal of his conviction and sentence.
Thereafter, defendant filed a pro se petition for PCR, alleging ineffective assistance of counsel. After PCR counsel was assigned to defendant, he filed a supplemental certification, alleging that trial counsel refused to speak with him about a motion to suppress, despite defendant informing trial counsel that his home was searched without his consent. Additionally, defendant claimed that he had filed a pro se ...