STATE OF NEW JERSEY v. DEREK BETHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEREK BETHEA,

Defendant-Appellant.

________________________________________________________________

July 9, 2015

Submitted May 4, 2015 Decided

Before Judges Espinosa and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1235.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a jury trial, defendant was convicted of one count of fourth-degree swindling and cheating at casino gambling, N.J.S.A. 5:12-113, and two counts of third-degree swindling and cheating at casino gambling, N.J.S.A. 5:12-113. Defendant was sentenced to an aggregate term of eleven years, six months, with a minimum period of parole ineligibility of five years, nine months.

In his direct appeal, defendant presented the following arguments

POINT I

THE TRIAL COURT COMMITTED ERROR IN ALLOWING THE JURY TO HEAR EVIDENCE OF PRIOR BAD ACTS/OTHER CRIME EVIDENCE BY THE DEFENDANT, WHICH CAUSED UNDUE PREJUDICE TOWARD THE DEFENDANT AND DEPRIVED HIM OF A FAIR TRIAL.

POINT II

THE TRIAL COURT VIOLATED MR. BETHEA'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS WHEN HE [sic] DENIED HIS REQUEST TO APPEAR PRO-SE.

POINT III

THE TRIAL COURT ERRED IN ALLOWING THE EXPERT WITNESS TO TESTIFY BECAUSE THE TESTIMONY DID NOT ASSIST THE JURY IN UNDERSTANDING THE FACTS AND WAS UNDULY PREJUDICIAL. (Not Raised Below)

POINT IV

THE COURT COMMITTED ERROR BY ADMITTING VIDEOTAPES INTO EVIDENCE WHICH WERE NOT PROPERLY AUTHENTICATED AND CONSTITUTED INADMISSIBLE HEARSAY.

POINT V

THE CONCURRENT SENTENCES IMPOSED BY THE COURT WAS [sic] AN ABUSE OF DISCRETION AND WAS [sic] UNDULY EXCESSIVE.

In an unpublished opinion, we affirmed his convictions and remanded his sentence for reconsideration in light of the principles enunciated in State v. Natale, 184 N.J. 458 (2005). State v. Bethea, No. A-1827-05 (App. Div. Jan. 19, 2007). On remand, the trial court imposed the same sentence as originally ordered. Defendant's direct appeal from that judgment was heard on a sentencing calendar. We affirmed.

Defendant filed a timely pro se PCR petition. The PCR court denied the petition and set forth its reasons on the record.

In this appeal, defendant presents the following arguments

POINT I

THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING UPON ESTABLISHING A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE FACTS SUPPORTING HIS POSITION LAY OUTSIDE THE RECORD.

POINT II

THE PCR COURT COMMITTED ERROR IN RELYING ON FACTS THAT LAY OUTSIDE THE RECORD WITHOUT CONDUCTING AN EVIDENTIARY HEARING.

After reviewing these arguments in light of the record and applicable legal principles, we conclude the arguments lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following brief comments.

Defendant presented an extensive list of alleged trial errors and legal arguments as the grounds for his PCR petition, including: defendant was falsely accused; trial counsel failed to make all appropriate objections and object to the admission of overly prejudicial evidence; failed to file a motion to dismiss the indictment; failed to file pretrial motions; failed to file a motion for mistrial; failed to move to obtain discovery; the witnesses presented false testimony and reports; the evidence was altered or tampered with; and his civil rights were violated.

The PCR judge addressed these arguments in an extensive oral opinion, noting specifically that the arguments rested upon bald assertions unsupported by any facts in a certification. The judge denied both the petition and the request for an evidentiary hearing.

In this appeal, defendant argues that counsel failed to: challenge the proofs adduced at trial, properly investigate the facts, or present essential witnesses or other evidence to counter the State's evidence of "past-posting." These arguments fail because the legal arguments are procedurally barred, R. 3:22-4(a), and the factual assertions are unsupported as required by Rule 3:22-10(c). See State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002); State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.