STATE OF NEW JERSEY v. DIMPY PATEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4081-07T44081-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DIMPY PATEL,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 5, 2009 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-04-0624.

Alan Dexter Bowman, P.A., attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dimpy Patel appeals from a January 25, 2008 order that denied his first petition for post-conviction relief (PCR). On appeal, he presents six arguments, each of which was raised on direct appeal, fully briefed, and ultimately rejected in our forty-five page opinion. Because defendant's arguments in support of his PCR petition were the identical arguments that had already been rejected on direct appeal, the PCR judge concluded that defendant was procedurally barred from raising those arguments again in the PCR context. We agree and affirm.

I.

Tried by a jury, defendant was convicted on January 10, 2002 of three counts of first-degree murder, for which he was sentenced to three consecutive life terms, each with a thirty-year period of parole ineligibility. On the armed robbery count, the judge sentenced him to a concurrent twenty-year term of imprisonment, subject to an eighty-five percent parole ineligibility term as required by the No Early Release Act. For related weapons offenses, the judge sentenced him to a consecutive five-year term, subject to a two and one-half year period of parole ineligibility.

On appeal from that conviction, defendant raised the following claims:

I. THE ENHANCED COURTROOM SECURITY PREJUDICED THE JURY AGAINST APPELLANT AND DENIED HIM A FAIR TRIAL.

II. THE STATE'S DISCRIMINATORY EXERCISES OF ITS PEREMPTORY CHALLENGES DENIED APPELLANT HIS RIGHT TO FAIR TRIAL.

III. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY VIRTUE OF THE STATE'S MANNER OF PRODUCING GODOY AND CONCEALMENT OF BENEFITS PROMISED TO HIM.

IV. THE COURT ERRED IN [REFUSING] TO STRIKE GODOY'S TESTIMONY BECAUSE OF A CLEAR SEQUESTRATION VIOLATION.

V. THE COURT WAS REQUIRED TO INSTRUCT THE JURY THAT APPELLANT COULD NOT BE FOUND TO HAVE CONSPIRED WITH MORALES.

VI. AS A MATTER OF LAW APPELLANT MAY NOT BE CONVICTED OF THE HOMICIDES OF HIRA AND RAVAL.

In an unreported opinion on June 8, 2004, we analyzed each of those claims and rejected them as meritless. State v. Patel, No. A-3375-01 (App. Div. June 8, 2004). The Supreme Court denied certification a few months later. State v. Patel, 182 N.J. 142 (2004).

Defendant then filed the PCR petition that is the subject of this appeal, in which he presented six arguments. Judge Carroll denied defendant's PCR petition without an evidentiary hearing, concluding that all six claims were identical to those already raised, and rejected, on direct appeal. For that reason, the judge held that defendant was procedurally barred from presenting those claims again in the PCR context.

On appeal, defendant argues:

I. THE ENHANCED COURTROOM SECURITY WAS NOT JUSTIFIED BY AN ESSENTIAL STATE INTEREST AND VIOLATED DUE PROCESS BECAUSE IT RESULTED IN VERDICTS BASED ON FACTORS OTHER THAN THE EVIDENCE INTRODUCED AT TRIAL.

II. APPELLANT WAS DENIED A FAIR TRIAL BECAUSE THE TRIAL COURT PERMITTED THE STATE TO USE PEREMPTORY CHALLENGES TO REMOVE JURORS FOR REASONS OTHER THAN SPECIFIC BIAS RELATING TO THE PARTICULAR CASE ON TRIAL.

III. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY VIRTUE OF THE STATE'S MANNER OF PRODUCING GODOY AND CONCEALMENT OF BENEFITS PROMISED TO HIM.

IV. THE COURT DENIED APPELLANT A FAIR TRIAL IN REFUSING TO STRIKE GODOY'S TESTIMONY BECAUSE OF A CLEAR AND INTENTIONAL SEQUESTRATION VIOLATION.

V. THE COURT VIOLATED DUE PROCESS IN FAILING TO INSTRUCT THE JURY THAT APPELLANT COULD NOT BE FOUND TO HAVE CONSPIRED WITH MORALES.

VI. AS A MATTER OF DUE PROCESS APPELLANT MAY NOT BE CONVICTED OF THE HOMICIDES OF HIRA AND RAVAL.

Defendant maintains that, in light of the claims asserted, we should set aside his convictions because "[d]ue process demands no less."

The State urges us to summarily reject defendant's claims. The State argues the trial court correctly held that because defendant's PCR claims are identical to those raised on direct appeal, those claims are barred by Rule 3:22-5, which bars a defendant from relitigating claims that were squarely addressed, and rejected, on direct appeal.

Only where a defendant raises constitutional issues of substantial import should the procedural bar of Rule 3:22-5 be relaxed. State v. Johns, 111 N.J. Super. 574, 576 (App Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972). Indeed, the Johns exception to the Rule 3:22-5 procedural bar is "very limited[.]" State v. Franklin, 184 N.J. 516, 528 (2005) (relaxing Rule 3:22-5 because the defendant raised "a legitimate and important constitutional question concerning whether judges may determine facts that will authorize an extended term under the Graves Act").

As Judge Carroll correctly observed, the six points defendant presented in his PCR petition were the very same contentions he presented, and we squarely rejected, on direct appeal. In both proceedings, defendant argued against his convictions by discussing: the courtroom security (point one); the State's use of its peremptory challenges (point two); the production of co-defendant Darwin Godoy and the promises made to him (point three); the Godoy sequestration violation (point four); the conspiracy count involving co-defendant Richard Morales (point five); and the convictions for the murders of Hira and Raval (point six). Each of these issues was evaluated, discussed and ultimately rejected in our June 8, 2004 decision on direct appeal.

We have been presented with no meritorious basis upon which to relax the procedural bar of Rule 3:22-5. None of defendant's arguments present unsettled questions of law, but instead require merely the application of settled law to the facts presented. Thus, defendant's arguments do not warrant a relaxation of Rule 3:22-5, especially in light of the comprehensive consideration of those issues in our opinion of June 8, 2004.

Affirmed.

State v. Patel, No. A-3375-01 (App. Div. June 8, 2004).

N.J.S.A. 2C:43-7.2.

Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings."

(continued)

(continued)

6

A-4081-07T4

October 16, 2009