STATE OF NEW JERSEY v. ALBERT J. FAUST

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5694-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT J. FAUST,

Defendant-Appellant.

____________________________________________

August 16, 2011

Submitted March 28, 2011 Decided

Before Judges A. A. Rodr guez and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 88-11-2173.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Albert J. Faust, appeals from the denial of his second petition for post-conviction relief (PCR). We affirm.

On January 8, 1993, defendant was convicted, following the denial of a motion to suppress and a jury trial, of first-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); and first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(6). Judge Louis F. Locascio merged the convictions and imposed an eighteen-year term with a nine-year parole disqualifier to run consecutive to a sentence defendant was serving in Pennsylvania. We affirmed the convictions and sentence. State v. Faust, No. A-4870-92 (App. Div. March 9, 1995), certif. denied, 141 N.J. 97 (1995).

The facts are fully set forth in our opinion on direct appeal. Briefly, the trial proofs showed that on September 13, 1988, defendant's vehicle was pulled over for speeding by the police. The stop led to a search, which revealed the presence of controlled dangerous substances.

Defendant filed a first PCR petition in December 1999, more than six years after the conviction. Judge James A. Kennedy denied the petition summarily on procedural and substantive grounds. No appeal was taken from the decision.

Defendant filed pro se a second PCR petition. The court assigned counsel to represent defendant. Counsel filed an amended petition and brief. Judge Anthony J. Mellaci, Jr., denied the petition after hearing oral argument.

On appeal, defendant contends:

THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S PETITION FOR [PCR] WAS TIME BARRED BECAUSE DEFENDANT'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

DEFENDANT'S PETITION FOR [PCR] IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] BECAUSE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

DEFENDANT WAS ENTITLED TO [PCR] BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

We reject all of these contentions, which are time barred by virtue of Rule 3: 22-12(a). The petition is also procedurally barred by Rule 3:22-5, because the arguments raised are substantially the same as those raised on the first PCR petition.