October 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RICHARD P. ZUCKERMAN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-11-1631.
Richard P. Zuckerman, appellant, argued the cause pro se.
Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).
Before Judges Fuentes, Simonelli and Haas.
This is defendant Richard P. Zuckerman's second attempt to reverse his sentence. In a prior appeal, he argued that his one-year non-custodial probationary sentence with a 264-day term of incarceration with time served was an illegal sentence, among other arguments. We agreed and reversed and remanded to correct the judgment of conviction (JOC) to eliminate the reference to a sentence of imprisonment and indicate the number of jail credits defendant had. State v. Zuckerman, Nos. A-4128-10, A-2962-11 (App. Div. Oct. 25, 2012) (slip op. at 7-8). We determined that defendant's remaining arguments lacked sufficient merit to warrant discussion in a written opinion under Rule 2:11-3(e)(2). Id. at 5-6. The JOC was corrected on remand.
In this latest appeal, defendant raises the same arguments he raised in the prior appeal. In the criminal sentencing context, if an issue has been determined on the merits in a prior appeal it cannot be re-litigated in a later appeal of the same case, even if of constitutional dimension. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Cusick, 116 N.J.Super. 482, 485 (App. Div. 1971). The Rule 3:22-5 bar will preclude an argument if the issue is identical or substantially equivalent to the issue previously adjudicated on its merits. McQuaid, supra, 147 N.J. at 484 (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438, 444 (1971)). To that end, Rule 3:22-5 provides:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.
Accordingly, Rule 3:22-5 bars re-litigating the issues raised in this appeal.