STATE OF NEW JERSEY v. COREY ARMSTEAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2083-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY ARMSTEAD,

Defendant-Appellant.

_________________________________

March 30, 2011

Submitted March 16, 2011 - Decided

Before Judges Fisher and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 01-10-1086, 01-06-0637, 00-09-1033 and 01-03-0319.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In 2003, defendant was charged under separate indictments and, pursuant to a plea agreement, pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; three counts of third-degree distribution or possession of a controlled dangerous substance (CDS) within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a; and two counts of second-degree possession of CDS within 500 feet of public housing, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a. Deviating from the State's recommended aggregate sixteen-year term of imprisonment with an eight-year parole disqualifier, Judge Subryan sentenced defendant to an aggregate fifteen years with a seven-and-one-half year parole disqualifier.

Defendant appealed his sentence pursuant to Rule 2:9-11. We affirmed the sentence but remanded for the entry of a corrected judgment of conviction to reflect the gap-time credits to which defendant was entitled. State v. Armstead, No. A-6797-03 (App. Div. May 5, 2005), certif. denied, 185 N.J. 295 (2005).

Defendant thereafter filed a timely petition for post-conviction relief (PCR), arguing his trial counsel was ineffective because he failed to file a motion for a speedy trial with respect to one of the indictments, a motion to suppress evidence based on an illegal search and seizure, and a motion to consolidate two of the indictments. Defendant also argued that appellate counsel was ineffective for failing to raise trial counsel's deficiencies.

Judge Caposela heard defendant's petition and denied it. In a written opinion, the judge found it impossible to assess defendant's claims because he merely submitted a brief citing general legal principles and a certification, which did not explain counsel's alleged mistakes. The judge also found that defendant did not make a minimal showing that any of the motions were appropriate in this case. The judge concluded that defendant provided nothing but "wild assertions unsubstantiated by any factual support or argument regarding their effect on the outcome of [his] case." This appeal followed.

On appeal, defendant raises the following arguments:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL

POINT THREE

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF

We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Caposela in his written opinion rendered on July 10, 2009.