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State v. Cantando

Superior Court of New Jersey, Appellate Division

November 1, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES V. CANTANDO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 16, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-12-4828.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

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

Before Judges Ostrer and Hayden.

PER CURIAM.

Defendant James V. Cantando appeals from the trial court's March 7, 2011, order denying, without an evidentiary hearing, his petition for post-conviction relief. Defendant asserts his trial attorney was ineffective by failing to file motions to suppress evidence seized pursuant to a search warrant, and by failing to assert his right to a speedy trial. We affirm.

We discern the following facts from the record. Representatives of the Chubb Institute (Chubb) in Cherry Hill, where defendant was a student, notified the local police on October 9, 2003, that they suspected that defendant was utilizing a school-owned computer to access child pornography. Based on Chubb's consent, police seized the suspected computer. After conducting an analysis of the contents of the computer, the police, on February 13, 2004, signed a summons-complaint charging defendant with violating N.J.S.A. 2C:24-4b(5)(b).

After police served defendant with the complaint at his home in Merchantville, defendant consented to a search of his home computer. Once Mirandized[1], he handwrote a signed statement:

I have downloaded porn, some of which was illegal. I did not distribute, in any way shape or form, any illegal porn. I attempted to delete it whenever possible, or d[e]stroy it with any means possible. I was not 100% successful. I do not make any type of porn. I have downloaded it on a borrowed laptop from the Chubb Institute and had some at home. I use kazaa to mass download porn videos and pictures, I go through the pictures after they dow[n]load and delete what I don[']t want.

Based on his statement, and the police's preliminary review of the computer seized from his home, police on February 24, 2004, sought a search warrant to conduct a further forensic search of the seized computer and other storage media. The warrant was granted and the forensic analysis was completed in June 2005.

The prosecutor's office and defendant engaged in fruitless, pre-indictment plea negotiations. The record includes a September 28, 2005, letter from the prosecutor to defendant's attorney offering a pre-indictment plea agreement that also would have resolved two separate criminal complaints charging theft of telephone service and theft of electrical service. The State sought an aggregate term of four years of incarceration. The prosecutor's notes reflect that defendant's counsel had difficulty contacting defendant and that he was about to vacate his apartment without a new address.

The child pornography matter was eventually presented to a Camden County grand jury, which returned an indictment on December 21, 2005, charging defendant with four counts of fourth-degree endangering the welfare of a child based on the possession of child pornography, N.J.S.A. 2C:24-4b(5)(b). Counts one and two pertained to offenses on October 9, 2003, in ...


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