STATE OF NEW JERSEY v. FRANK VASQUEZ

NOT FOR PUBLICATION WITHOUT THE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.

FRANK VASQUEZ,

Defendant-Appellant.

_________________________________________________

December 15, 2015

Submitted November 4, 2015 Decided

Before Judges Yannotti and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-02-0168.

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

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Frank Vasquez appeals from the December 4, 2013, order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing.

Defendant was tried to a jury and found guilty of first degree robbery, N.J.S.A. 2C:15-1. On October 31, 2003, defendant was sentenced to an extended term of twenty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judgment of conviction was amended on November 25, 2003 to correct jail and gap-time credits.

Defendant filed a notice of appeal on February 6, 2004. We granted defendant's motion to file a notice of appeal as within time and two subsequent motions to extend time to file his brief, but on November 9, 2004, we dismissed the appeal for failure to file a timely brief. On April 18, 2005, we reinstated defendant's appeal, but on July 26, 2005, we again dismissed for failure to prosecute.

On August 31, 2010, defendant filed a pro se motion to file an appeal nunc pro tunc. On November 3, 2010, an amended notice of appeal was filed. On November 18, 2010, we granted defendant's motion to file a notice of appeal as within time. On April 30, 2012, we affirmed defendant's conviction and sentence. State v. Vasquez, No. A-3087-03 (App. Div. Apr. 30, 2012). Our Supreme Court denied defendant's petition for certification. State v. Vasquez, 212 N.J. 431 (2012).

Defendant filed a pro se petition for PCR on February 8, 2013. On December 4, 2013, Judge Robert G. Malestein denied the petition.

On appeal, defendant raises the following arguments

point i

the pcr court erred in finding frank vasquez's petition for post-conviction relief barred under r.3:22-12.

point ii

defendant is entitled to post-conviction relief based on ineffective assistance of trial counsel.

a. trial counsel was ineffective in his failure to object to the state witness, luis Vasquez, testifying in prison garb and shackles.

b. trial counsel was ineffective in his failure to object to inadmissible hearsay.

c. trial counsel was ineffective in his failure to prepare adequately for trial.

d. trial counsel was ineffective in his failure to adequately advise the defendant on his right to testify at trial.

point iii

defendant is entitled to post-conviction relief based on ineffective assistance of appellate counsel.

a. appellate counsel was ineffective in his failure to challenge the trial court's abuse of discretion in permitting luis Vasquez to testify in prison garb, handcuffs, and shackles.

point iv

defendant reasserts all other issues raised in defendant's pro se post-conviction relief petition.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons contained in the thorough and comprehensive written decision of Judge Malestein. We add only the following brief comments.

We agree with Judge Malestein that the PCR petition is time-barred. Rule 3:22-12 requires a PCR petition to be filed within five years of the judgment of conviction unless excusable neglect can be shown. Defendant's petition was filed on February 8, 2013, more than nine years after the judgment of conviction. Such a lengthy delay increases the already substantial burden to show excusable neglect and that a fundamental injustice will result. See State v. Afanador, 151 N.J. 41, 52 (1997) ("[T]he burden to justify filing a petition after the five-year period will increase with the extent of the delay."). Nowhere in defendant's petition does he attempt to explain the delay or detail any efforts he made to pursue his appeal.

Even though Judge Malestein correctly found defendant's petition procedurally barred, he considered the merits of each of defendant's arguments in the petition. His conclusion that defendant has failed to meet either the performance or prejudice prong of the Strickland1 test is adequately supported in the record.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).