STATE OF NEW JERSEY v. EFRAIN CINTRON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6319-04T46319-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EFRAIN CINTRON,

Defendant-Appellant.

______________________________________________

 

Submitted July 3, 2006 - Decided July 31, 2006

Before Judges Collester and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Ind. No. 02-03-0552.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jack Gerber, Designated Counsel,

of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Kristen Brewer, Assistant

Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Efrain Cintron appeals from the denial of his petition for post-conviction relief (PCR) challenging his 2002 conviction for second-degree robbery and resulting seven-year sentence, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

Defendant filed his PCR petition pro se, raising two issues. As reframed by assigned counsel in a supplemental brief, the issues were:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO ASK THE TRIAL COURT TO INSTRUCT THE JURY AS TO THE DIFFERENT KINDS OF CULPABILITY FOR CRIMES.

POINT II

AN EVIDENTIARY HEARING SHOULD BE CONDUCTED TO DETERMINE WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION OF THIS MATTER.

After hearing oral argument, Judge Schultz denied the petition without an evidentiary hearing, setting forth his ruling on the record on June 30, 2005.

On appeal defendant presents two issues for our consideration:

POINT I

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT II

THE MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NESBITT.

In addition, in a supplemental pro se brief, defendant argues:

POINT I

STATUTES ARE NOT ICONS AND CAN NOT ABROGATE CONSTITUTIONAL RIGHTS.

POINT II

INEFFECTIVE ASSISTANCE OF COUNSEL HAS OCCURRED PRIOR TO TRIAL, NOT BECAUSE COUNSEL DID PROVIDE DISCOVERY MATERIAL, BUT BECAUSE NO INVESTIGATION INSUED [sic] TO DISPROVE THAT DISCOVERY MATERIAL.

Having reviewed defendant's arguments in light of the record and applicable law, we find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons well-expressed by Judge Schultz in his June 30, 2005 oral opinion.

However, the sentencing argument raised by counsel was not advanced to or addressed by the PCR judge, requiring that we discuss it briefly. State v. Nesbitt, 185 N.J. 504 (2006), does not mandate the vacation of defendant's sentence. In Nesbitt, the defendant received a nine-year term with four and one-half years of parole ineligibility based on a finding of aggravating factors three, six and nine. Id. at 510 n.1. The Court remanded for a re-sentencing in light of State v. Natale, 184 N.J. 458 (2005). Id. at 519. In this case, defendant received a presumptive term of seven years. Natale is, therefore, inapplicable. Even if the rationale of Natale could be deemed applicable to defendant, his case does not fall within the "pipeline" to which Natale granted retroactive application. Natale, supra, 184 N.J. at 494. Thus, there is no merit to defendant's sentencing argument.

Affirmed.

 

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A-6319-04T4

July 31, 2006