NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-01-0034, 06-02-0267, 06-01-0037.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Hayden.
Defendant appeals from the January 28, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Having considered defendant's arguments in light of the record and controlling law, we reverse and remand to the Law Division for an evidentiary hearing.
The record reveals that, on January 10, 2006, a grand jury issued an indictment charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession with intent to distribute on or near school property, N.J.S.A. 2C:35-7.
On the same day, the grand jury issued another indictment, for a separate incident, charging defendant with third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree distribution of CDS on or near school property, N.J.S.A. 2C:35-7.
On February 21, 2006, a grand jury issued a third indictment that charged defendant with second-degree burglary, N.J.S.A. 2C:18-2; nine counts of first-degree armed robbery, N.J.S.A. 2C:15-1; and a disorderly persons offense for possession of drug paraphernalia, N.J.S.A. 2C:36-2.
The indictments were based on three separate events. First, on July 19, 2005, defendant allegedly sold cocaine to an undercover police officer within a school zone. Second, on October 19, 2005, defendant, armed with a BB gun, and two other men allegedly entered an apartment, forced the occupants onto the floor, and stole marijuana, cash, and other valuables.
That same day, the police arrested defendant at his girlfriend's apartment after one of the robbery victims identified him from a photo array. In searching defendant incident to the arrest, the police found cocaine on his person.
When the police asked defendant for permission to search the apartment, he declined because it was his girlfriend's apartment. The police immediately contacted defendant's girlfriend, who signed a consent form allowing the police to search the apartment. The search revealed drug paraphernalia and a cell phone taken from one of the robbery victims.
After defendant's arrest, the police contacted his mother, who came to the station and, at the request of the police, spoke with defendant. As a result of their multiple conversations, defendant agreed to cooperate with police and led them to two guns utilized in the robbery. Subsequently, the police gave defendant his Miranda warnings, and he gave a formal statement implicating himself in the robbery.
On August 7, 2006, pursuant to a plea agreement, defendant pled guilty to one count from each indictment. Specifically, he pled guilty to two counts of third-degree possession with intent to distribute on or near school property, with the State recommending two five-year terms with three years of parole ineligibility. Defendant also pled guilty to one count of first-degree armed robbery, with the State recommending an eight-year term with an eighty-five percent ...