STATE OF NEW JERSEY v. ANDREW MOLOTSCHKO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4409-04T14409-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW MOLOTSCHKO,

Defendant-Appellant.

 

Submitted December 14, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 99-03-0647-I.

Evan F. Nappen, attorney for appellant (Richard V. Gilbert, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Thomas C. Huth, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andrew Molotschko appeals from the denial of his petition for post-conviction relief. We affirm.

On July 16, 1999, defendant pleaded guilty to third-degree unlawful possession of a weapon without an identification card, N.J.S.A. 2C:39-5c; N.J.S.A. 2C:58-3. In return for his guilty plea, the court dismissed the following motor vehicle charges: driving while intoxicated, N.J.S.A. 39:4-50; driving while drinking an alcoholic beverage, N.J.S.A. 39:4-51a; reckless driving, N.J.S.A. 39:4-96; and failure to carry motor vehicle insurance coverage, N.J.S.A. 39:6B-2. The court imposed a two-year probationary term and appropriate fines. Defendant did not appeal from his judgment of conviction.

In his petition for post-conviction relief filed on January 20, 2004, defendant claims he was denied effective assistance of counsel because his attorney "failed to explore and invoke the appropriate New Jersey exemptions for firearms possession." He argues that he was "returning to his residence from hunting, and his rifle was unloaded, cased, and inaccessible in the bed of his pickup, he met all of the required exemptions for lawful possession of a firearm under New Jersey law." He further asserts that his attorney failed to invoke the "Federal Firearms Owners' Protection Act, 18 U.S.C. 926A (1986)."

Judge Neafsey held a hearing to resolve defendant's post-conviction relief application on February 9 and 10, 2005. Both defendant and the attorney who represented him at the plea hearing testified. On March 15, 2005, Judge Neafsey denied defendant's application. He made the following findings:

The facts are as follows: On December 3rd, 1998 petitioner was pulled over by a police officer. He was charged with possession of a weapon without an identification card and . . . several driving charges including driving while intoxicated.

Petitioner told the officer that his name was Andrew Molotschko and that he was returning from a friend's house. The next day petitioner again spoke with police. He amended his story to allege he had been returning from a hunting trip in Millstone, New Jersey at the time he was pulled over.

Two . . . police reports were marked as exhibits. Neither report provided any information regarding statements by the defendant after an out of State hunting trip.

As stated previously, the defendant pled guilty on July 16th, 1999. He then told the criminal case management officer in the Probation Department a third version of events regarding this incident.

He stated that he had planned on going on a hunting trip but that his trip fell through and that he was returning from his friend's house where he had gone to pick up his hunting gear and deer carcasses at the time he was stopped by police.

As stated previously, on July 7th of 2004 the petitioner related yet another version of the days of the incident in his verified petition for post conviction relief. This version under oath alleged that petitioner was on his way home from a hunting trip in another state.

On February 10th of 2005 at the PCR hearing, petitioner under oath reiterated the version he told the criminal case management officer on July 16th, 1999. That is, he stated he was returning from a friend's house where he had gone to pick up his hunting gear.

The PCR judge found defendant's testimony to be incredible as to his various versions of what happened. The judge concluded that had defendant informed his attorney of any basis for an exemption from the governing statute, counsel would have pursued that exemption. In addition, based on the facts, the judge found that no exemption would have been applicable.

On appeal, defendant raises the following two legal arguments:

POINT I: APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF COUNSEL WHICH UNDERCUT THE KNOWING AND VOLUNTARY ASPECTS OF HIS PLEA AGREEMENT, AND THE COURT BELOW THEREFORE ERRED BY DENYING APPELLANT'S MOTION FOR POST CONVICTION RELIEF.

POINT II: APPELLANT'S PLEA DID NOT ADEQUATELY ESTABLISH A FACTUAL BASIS FOR THE OFFENSE AND APPELLANT WAS DENIED DUE PROCESS DUE TO THE FACT THAT THE EXEMPTIONS TO THE STATUTE WERE NOT EXPLORED.

We have carefully considered defendant's arguments in light of the existing law. We defer to the judge's factual findings, which were supported by substantial credible evidence in the record, State v. Locurto, 157 N.J. 463, 470-71 (1999), and affirm substantially for the reasons expressed by Judge Neafsey in his well-reasoned March 15, 2005 opinion. Defendant's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-4409-04T1

December 21, 2005