STATE OF NEW JERSEY v. MICHAEL NEGRON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5797-05T15797-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL NEGRON,

Defendant-Appellant.

_________________________________

 

Submitted December 3, 2007 - Decided

Before Judges Lintner and Alvarez.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

91-12-1979.

Michael Negron, appellant pro se.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara Liebman, Assistant Prosecutor, of counsel and on the brief; Kimberly Donnelly, Law Intern, on the brief).

PER CURIAM

On December 20, 1991, a Union County Grand Jury returned Indictment No. 91-12-1979, charging defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) (Count One); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two); two counts of first-degree attempted murder, N.J.S.A. 2C:11-3a(1) or (2) (Counts Three and Four); second-degree possession of a weapon with intent to use it against another, N.J.S.A. 2C:39-4a (Count Five); third-degree possession of a weapon, N.J.S.A. 2C:39-5b (Count Six); and second-degree attempted aggravated arson, N.J.S.A. 2C:17-1a (Count Seven).

On October 20, 1993, following a Miranda hearing, Judge Barisonek found that defendant's oral and written statements to the police were admissible. Thereafter, a jury returned a verdict, finding defendant guilty of first-degree murder of Roxanne Hollingshead, first-degree attempted murder of Monique Washington and Francisco Gonzales, second-degree possession of a weapon for an unlawful purpose, and third-degree possession of a weapon. He was acquitted on Counts Two and Seven. On February 23, 1994, defendant was sentenced to an aggregate term of seventy years imprisonment with a forty-year parole disqualifier.

We affirmed defendant's sentence and conviction on April 18, 1997, rejecting defendant's contention that the State failed to prove that he waived his right to remain silent regarding his oral statement to the police, and concluding that his "incriminatory statements were properly admitted into evidence" and the consecutive sentence imposed was neither excessive nor violative of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Defendant's petition for certification was denied. State v. Negron, 151 N.J. 468 (1997).

Defendant's first petition for PCR, filed on October 22, 1997, was denied by Judge Barisonek without an evidential hearing on May 11, 1999. We affirmed that denial on December 7, 2000. Defendant's petition for certification was denied. State v. Negron, 167 N.J. 637 (2001). In this, his second PCR application filed on November 1, 2005, defendant asserted that Judge Barisonek committed plain error at trial when he failed to suppress oral responses to interrogation. Defendant contended in his PCR application that he was entitled to relief under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), notwithstanding our prior decision on direct appeal, affirming Judge Barisonek's finding that defendant was read his Miranda rights prior to defendant's agreement to orally answer questions.

We need not reiterate the facts; they were sufficiently recited in our April 18, 1997, per curiam opinion on direct appeal. At oral argument on defendant's PCR application, Judge Barisonek pointed out that the facts in Seibert are distinguishable because in Seibert the defendant was not informed of her Miranda rights until after she confessed following thirty to forty minutes of uninterrupted interrogation. Seibert, supra, 542 U.S. at 604-05, 124 S. Ct. at 2605-06, 159 L. Ed. 2d at 650. Judge Barisonek explained that defendant was read his Miranda rights prior to being interrogated. The judge then found that defendant's PCR application was procedurally barred under the five-year time bar, R. 3:22-12, and because he raised substantially the same argument in his direct appeal, R. 3:22-5.

Defendant now raises the following contentions on appeal:

I. THE TRIAL COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING.

II. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S POST-CONVICTION RELIEF PETITION.

In a supplemental brief, defendant asserts:

I. THE TRIAL COURT ERRED BY INVOKING A PROCEDURAL BAR.

II. THE ACTIONS ACCOMPLISHED HEREIN ARE POLICE TACTICS CONDEMNED AS UNCONSTITUTIONAL PURSUANT TO THE FEDERAL CONSTITUTION.

We are in complete agreement with Judge Barisonek's analysis that defendant's second PCR application is procedurally barred. His arguments and contentions on appeal to the contrary lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Barisonek in his comprehensive oral opinion on May 9, 2006.

Affirmed.

Since the appendices and transcript are largely limited to defendant's post conviction relief (PCR) motion, the procedural history and facts are drawn from the parties' briefs and the transcript of the PCR hearing.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

On November 25, 2002, defendant's September 7, 2001, Writ of Habeas Corpus was denied by the Federal District Court. On September 9, 2003, defendant's application for a Certificate of Appealability was denied by the Third Circuit. On September 29, 2004, defendant's motion to withdraw the mandate was denied

and his petition for certiorari was denied by the United States Supreme Court on March 21, 2005.

This petition is signed by Mujahid Abdul-Aziz, which apparently is another name defendant goes by.

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A-5797-05T1

December 14, 2007