STATE OF NEW JERSEY v. ADAM BECK

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3728-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADAM BECK,

Defendant-Appellant.

_________________________________________________________

November 12, 2010

Argued November 3, 2010 - Decided

Before Judges Skillman and Parrillo.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment

No. 05-01-0384.

Thomas Connelly argued the cause for appellant (The Connelly Firm, attorneys; Mr. Connelly, on the brief).

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

PER CURIAM

Defendant was indicted for aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(2)(c); sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1); aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3(a); endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a); and terroristic threats, in violation of N.J.S.A. 2C:12-3(a). Defendant entered into a plea agreement under which he agreed to plead guilty to an amended charge of endangering the welfare of a child, and the State agreed to dismiss the other charges set forth in the indictment. The State also agreed to recommend that defendant be sentenced to five years of non-custodial probation. The trial court sentenced defendant in accordance with the plea agreement to a five-year term of probation. Defendant did not appeal from this sentence, which was imposed on March 31, 2006. On September 28, 2006, defendant filed a motion to withdraw his plea, which was denied. Defendant did not appeal from that denial.

On October 16, 2009, defendant filed a petition for post-conviction relief. Defendant claimed that he had not provided an adequate factual basis for his plea and therefore his conviction had to be "vacated."

The State filed its answer to the petition on February 16, 2010, which was beyond the sixty-day period provided by Rule 3:22-9 for answering a petition for post-conviction relief. Based on that late answer, defendant filed a motion on February 18, 2010, for what he described as a "judgment upon the pleadings," by which he sought to vacate his conviction or, alternatively, to bar consideration of the State's answer to his petition.

The trial court heard argument on both this motion and the petition on February 19, 2010. The court denied defendant's motion based on the State's late filing of its answer. Defendant's counsel then requested a continuance to file an amended petition. The court denied this request. After defendant's counsel indicated that he had no further argument to present, the trial court delivered an oral opinion denying the petition for post-conviction relief.

On appeal, defendant presents the following arguments:

I. THIS HONORABLE COURT SHOULD REVERSE

THE FEBRUARY 19, 2010 ORDER AND

DECISION OF THE TRIAL COURT DENYING

DEFENDANT-APPELLANT'S MOTION FOR

A DIRECTED VERDICT BECAUSE SAID

DECISION/ORDER IS CLEARLY ERRONEOUS

AND VIOLATES DEFENDANT-APPELLANT'S

RIGHT TO DUE PROCESS OF LAW UNDER

THE UNITED STATES AND NEW JERSEY

CONSTITUTIONS.

II. THIS HONORABLE COURT SHOULD REVERSE

THE FEBRUARY 19, 2010 ORDER AND

DECISION OF THE TRIAL COURT DENYING

DEFENDANT-APPELLANT'S APPLICATION

FOR A CONTINUANCE AND LEAVE TO FILE

AN AMENDED PETITION FOR POST CONVICTION

RELIEF BECAUSE SAID DECISION/ORDER

IS CLEARLY ERRONEOUS AND VIOLATES

DEFENDANT-APPELLANT'S RIGHT TO DUE

PROCESS OF LAW UNDER THE UNITED

STATES AND NEW JERSEY CONSTITUTIONS.

III. THIS HONORABLE COURT SHOULD REVERSE

THE FEBRUARY 19, 2010 ORDER AND

DECISION OF THE TRIAL COURT DENYING

DEFENDANT-APPELLANT'S PETITION FOR

POST CONVICTION RELIEF BECAUSE SAID

DECISION/ORDER IS CLEARLY ERRONEOUS

AND VIOLATES DEFENDANT-APPELLANT'S

RIGHT TO DUE PROCESS OF LAW UNDER

THE UNITED STATES AND NEW JERSEY

CONSTITUTIONS.

We reject these arguments and affirm the denial of defendant's petition for post-conviction relief substantially for the reasons set forth in Judge Natal's February 19, 2010 oral opinion. Defendant's arguments that the trial court erred in denying his motion to vacate his conviction because the State filed a late answer to the petition and that the court abused its discretion in denying his motion for a continuance are clearly without merit. R. 2:11-3(e)(2). We only note that defendant has not set forth any additional claim or argument he could have asserted if he had been granted a continuance to file an amended petition.

Affirmed.