STATE OF NEW JERSEY v. ALVIN MENDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3860-04T43860-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALVIN MENDEZ,

Defendant-Appellant.

_______________________________________________________________

 

Submitted December 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 3687-12-99.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant, Alvin Mendez, appeals from the Law Division's March 29, 2005 final order denying defendant post-conviction relief.

On appeal, defendant makes the following arguments:

POINT I

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL WHEN THE TRIAL COURT INSTRUCTED THE JURY THAT IN ORDER TO FIND PETITIONER GUILTY OF FIRST-DEGREE DISTRIBUTION OF DRUGS IT WAS NOT NECESSARY FOR IT TO FIND THAT PETITIONER KNEW THE QUANTITY OF THE DRUGS HE DISTRIBUTED. PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF AS THE LEGAL ARGUMENT SET FORTH HEREIN WARRANTS THE GRANTING OF SUCH RELIEF (U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, par. 10).

POINT II

DEFENSE COUNSEL'S FAILURE TO REMOVE JUROR #406, WHO WAS EMPLOYED AS A DISPATCHER BY THE CAMDEN POLICE DEPARTMENT, THROUGH THE EXERCISE OF A PREEMPTORY CHALLENGE CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL WHICH MUST RESULT IN THE REVERSAL OF DEFENDANT'S CONVICTION, AS HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS WERE IMPROPERLY DENIED. ADDITIONALLY, APPELLATE COUNSEL'S FAILURE TO RAISE THIS ISSUE ON DIRECT APPEAL ALSO CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL. THEREFORE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON THESE ISSUES AND THE COURT'S DENIAL OF SAID HEARING IS ERRONEOUS (U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, par. 10).

 
We have considered these contentions in light of the record and applicable principles of law, and we reject them. We affirm substantially for the reasons set forth by Judge Millensky in his thorough and well-reasoned written opinion of March 29, 2005.

Affirmed.

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A-3860-04T4

December 20, 2005