NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted  December 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-10-0936.
Miles Feinstein, attorney for appellant.
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Sabatino.
Defendant Anthony Carlino, who was found guilty by a jury in 2004 of committing various crimes against a minor, appeals the trial court's denial of his petition for post-conviction relief ("PCR"). We affirm.
We need not repeat the facts in detail, as they are set forth at length in our 2007 unpublished opinion affirming defendant's conviction. State v. Carlino, No. A-3839-04 (App. Div. June 13, 2007), certif. denied, 192 N.J. 480 (2007). In essence, the State's proofs showed that on a morning in May 2003, defendant was driving a burgundy van near a school. He rolled down the window and spoke with the victim, a ten-year-old girl, and offered her candy. She ran and reported the incident to a security guard at the nearby school. Meanwhile, defendant continued to drive his van around the school area. When police officers subsequently apprehended defendant, the girl identified him as the man who had approached her. A search warrant was issued for the van, and the police discovered within it a rope, condoms, masking tape, and other incriminating items. Defendant was then arrested.
A grand jury charged defendant with attempted kidnapping (count one), N.J.S.A. 2C:13-1b(1) and N.J.S.A. 2C:5-1a(3); luring or enticing a child (count two), N.J.S.A. 2C:13-6; and endangering the welfare of a child (count three), N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-1a(3). Prior to trial, the State offered defendant a plea agreement, which included a recommendation that he serve a three-month sentence. Defendant rejected the plea offer.
After the jury was empaneled before Judge Ronald G. Marmo, defendant moved for an adjournment and to have his trial counsel relieved for another lawyer that he was expecting to retain. Judge Marmo considered the application in a hearing outside of the jury's presence. Defendant complained that his present attorney was refusing to call certain witnesses and was inadequate in various other respects. The trial attorney, meanwhile, explained on the record why he thought it would be harmful to defendant's case to call those particular witnesses. The attorney also provided other explanations about his efforts to prepare the case. Judge Marmo rejected defendant's request in light of those explanations, specifically finding that the defense attorney had been acting diligently to advance his client's interests.
Later at trial, the State presented several witnesses, principally the minor victim. Defendant testified on his own behalf. He claimed that he had been driving near the school because he was lost and had only stopped the van to get directions. He also claimed that because of his poor eyesight he could not tell that he was speaking with a child rather than an adult. Defendant, who was in the business of repossessing vehicles, contended that the rope and tape the police found in his van had come from a car he had earlier repossessed.
The jury found defendant guilty of all three counts of the indictment. After merging count three into counts one and two, Judge Marmo imposed a seven-year custodial sentence, with a parole disqualifier for eighty-five percent of the maximum term. Defendant was also made subject to the requirements of Megan's Law.
On direct appeal, we rejected defendant's claims of various trial errors, the denial of a fair trial, insufficient evidence, and an excessive sentence. Carlino, supra, slip op. at 5-13. The opinion preserved for a future PCR application ...