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State v. Tucker

Superior Court of New Jersey, Appellate Division

December 17, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JOHN TUCKER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-06-1155.

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

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Harris and Guadagno.

PER CURIAM

Defendant John Tucker appeals from the January 26, 2012 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

Tried to a jury in 2004, Tucker was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-(4); and fourth-degree child abuse, N.J.S.A. 9:6-1 and -3 (two counts). After merger, the trial court sentenced Tucker to an aggregate term of nine years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed the convictions, but remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Tucker (Tucker I), No. A-4588-04 (App. Div. Oct. 16, 2006) (slip op. at 9). The Supreme Court denied certification. State v. Tucker, 189 N.J. 428 (2007).

The remand produced the same sentence, which we affirmed on an Excessive Sentence Oral Argument (ESOA) calendar pursuant to Rule 2:9-11. State v. Tucker (Tucker II), No. A-2471-07 (App. Div. Sept. 23, 2009). The Supreme Court again denied certification. State v. Tucker, 201 N.J. 156 (2010).

The present application for PCR was filed pro se on January 14, 2010.[1] After PCR counsel[2] was assigned, a formal brief was submitted to the Law Division, together with a certification signed by Tucker. Among other things, Tucker argued that he suffered the ineffective assistance of counsel through several putative errors and omissions committed by trial counsel. Additionally, Tucker contended that appellate and initial PCR counsel were ineffective. Finally, Tucker asserted that his trial was irretrievably tainted when the trial judge failed to properly address allegedly inflammatory comments made by Tucker's sister when she was testifying.

The PCR judge conducted oral argument on January 26, 2012. A nine-page written opinion denying relief was issued on January 30, 2012. A memorializing order was ...


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