STATE OF NEW JERSEY v. ANTONIO COLLADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1060-07T41060-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTONIO COLLADO,

Defendant-Appellant.

______________________________________________

 

Submitted October 28, 2008 - Decided

Before Judges Skillman and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No. 04-03-0081.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Arthur J. Owens, Designated

Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

On April 22, 2004, defendant pled guilty pursuant to a plea bargain to a charge of a first-degree possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(1). The State agreed as part of the plea bargain to recommend that defendant be sentenced to a ten-year term of imprisonment, with five years of parole ineligibility. The State also agreed to dismiss other pending drug charges against defendant. On June 11, 2004, the trial court sentenced defendant in conformity with the plea agreement to a ten-year term of imprisonment, with five years of parole ineligibility. Defendant did not file a direct appeal from the judgment of conviction.

In March 2006, defendant filed a petition for post-conviction relief based on alleged ineffective assistance of trial counsel. The trial court conducted an evidentiary hearing, at which defendant's live-in girlfriend and his trial counsel testified, following which the court denied defendant's petition for the reasons set forth in an oral opinion.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT ONE:

THE POST-CONVICTION RELIEF COURT FAILED TO CONSIDER DEFENDANT'S INEFFECTIVENESS OF COUNSEL CLAIM UNDER THE CORRECT STANDARD IN DETERMINING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO:

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).

We reject the arguments defendant presents under Point I of his brief substantially for the reasons set forth in Judge Reddin's August 20, 2007 oral opinion. We also note that there is no basis for concluding that the motion to suppress, which defendant claims his trial counsel failed to inform him he would be waiving the right to present by pleading guilty, would have had any likelihood of success. The stop of a defendant's car for motor vehicle offenses and the subsequent observation of a car door panel that appeared to have been tampered with would have provided probable cause for the search of defendant's car that revealed twenty-two kilograms of cocaine even if defendant had not given a valid consent to that search.

 
Defendant's argument that the attorney who represented him on his petition for post-conviction relief was ineffective is clearly without merit. R. 2:11-3(e)(2). We only note that the determination of what questions to ask trial counsel at the hearing on defendant's petition was a matter of strategy and that there is no reasonable likelihood that the outcome of the hearing would have been different if his counsel on the petition had asked the questions that defendant now claims he was ineffective in failing to ask.

Affirmed.

(continued)

(continued)

3

A-1060-07T4

December 1, 2008