STATE OF NEW JERSEY v. ROBERT POMALES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1127-04T21127-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT POMALES,

Defendant-Appellant.

___________________________

 

Submitted November 15, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Passaic

County, Indictment No. 88-10-1675-I.

Robert Pomales, appellant pro se.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent

(Terry Bogorad, Senior Assistant

Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from a trial court order denying his second petition for post-conviction relief (PCR). We affirm, substantially for the reasons set forth by Judge Reddin in his written opinion dated August 16, 2004.

In 1989, defendant was convicted of first degree murder, N.J.S.A. 2C:11-3a(1)(2) and N.J.S.A. 2C:2-6, and possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). He was sentenced to thirty years in prison without parole eligibility on the murder conviction and a concurrent sentence of five years for the weapons possession. We affirmed the conviction in 1991, rejecting his claim that the sentence was excessive. State v. Pomales, A-2751-89T4 (May 20, 1991), certif. denied, 127 N.J. 552 (1991).

Defendant's first PCR, filed in 1996, was denied as untimely. We affirmed the trial court's decision, and the Supreme Court denied certification. State v. Pomales, A-474-98T4 (September 30, 1999), certif. denied, 164 N.J. 189 (2000). Defendant subsequently filed an application for a writ of habeas corpus in the United States District Court, which was denied, following an evidentiary hearing on plaintiff's claim of actual innocence based on alleged newly discovered evidence. Pomales v. Moore, Civil Action No. 01-1649 (JWB) (D.N.J. 2003). The United States Court of Appeals for the Third Circuit rejected plaintiff's appeal, and the United States Supreme court denied certioriari.

In this case, his second PCR, defendant raises the following contentions:

POINT I: THE LACK OF A PRESENTENCE INVESTIGATION AND REPORT REQUIRES A REMAND TO THE LAW DIVISION FOR RESENTENCE HEARING SO THAT ALL INFORMATION MAY BE TAKEN INTO ACCOUNT.

POINT II: N.J.S.A. 2C:11-3B(1) IS UNCONSTITUTIONAL IN THAT [IT] ALLOWS FOR UNEQUAL TREATMENT AMONGST DEFENDANTS WHO ARE CONVICTED AND SENTENCED FOR MURDER, IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS, IT MUST BE STRUCK DOWN AS BEING UNCONSTITUTIONAL.

Having reviewed the record, we conclude that all of these contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-1127-04T2

November 23, 2005