STATE OF NEW JERSEY v. SAMUEL KROSKY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5931-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL KROSKY,

a/k/a SAMUEL L. KROSKY,

a/k/a SAM BUCCINO,

a/k/a SAMUEL L. BUCCINO,

a/k/a SAMUEL KORSKY,

a/k/a BUCCINO KROSKY,

a/k/a SAMUEL KROSY,

Defendant-Appellant.

_______________________________________

March 11, 2011

Submitted February 15, 2011 Decided

Before Judges Parrillo and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-03-0184, 05-03-0185, 05-03-0186 and 05-03-0187.

Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Drozd, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Jane Plaisted, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Samuel Krosky appeals from an order entered by the Law Division on October 2, 2008, which denied his petition for post-conviction relief (PCR). We affirm.

On March 2, 2005, defendant pled guilty to two counts of third-degree burglary, N.J.S.A. 2C:18-2, as charged in Accusation 184-03-05A; one count of third-degree burglary, N.J.S.A. 2C:18-2, as charged in Accusation 185-03-05A; one count of third-degree burglary, N.J.S.A. 2C:18-2, as charged in Accusation 186-03-05A; and two counts of third-degree burglary, N.J.S.A. 2C:18-2, as charged in Accusation 187-03-05A. The State agreed to dismiss all of the other charges in the four Accusations, which according to the pre-sentence report included seventy-five counts of third-degree burglary, N.J.S.A. 2C:18-2; seventy-four counts of third-degree theft, N.J.S.A. 2C:20-3; seventeen counts of fourth-degree criminal mischief, N.J.S.A. 2C:17-3; and seven counts of third-degree attempt, N.J.S.A. 2C:5-1(a).

The plea was part of a multi-county agreement resolving charges against defendant in Essex, Middlesex, Morris, Passaic, Monmouth and Union counties. The State agreed to recommend imposition of an aggregate twenty-five-year prison sentence, with a ten-year parole bar. The State further agreed that if the court in Middlesex County imposed a maximum term of less than twenty-five years, the court in Essex County would impose the same term provided it was at least twenty years.

On May 26, 2005, the trial court sentenced defendant to an aggregate term of twenty-five years of incarceration, with a ten-year period of parole ineligibility. The sentence was made concurrent to the sentences imposed in Middlesex, Morris and Union counties. Defendant appealed. We entered an order on October 27, 2005, remanding the matter to the trial court for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). See State v. Krosky, No. A-4803-04 (App. Div. Oct. 27, 2005).

Defendant was re-sentenced on January 10, 2006. On that date, the court also considered defendant's motion for reconsideration of his sentence. The court denied the motion but ordered that the judgments of conviction be amended to reflect that the gap time awarded was applicable to each offense of which defendant was convicted. The court again sentenced defendant to twenty-five years of incarceration, with a ten-year period of parole ineligibility.

Defendant filed an amended notice of appeal and his appeal was heard on our excessive sentence calendar. We entered an order affirming the trial court's judgment. State v. Krosky, No. A-6414-04 (App. Div. Aug. 24, 2006). Defendant sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Krosky, 189 N.J. 427 (2007).

On July 25, 2007, defendant filed a petition for PCR. Counsel was appointed to represent defendant, and counsel filed a brief in which he raised the following arguments:

POINT ONE

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BECAUSE HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE THAT HIS CLIENT'S SENTENCE IS ABOVE THE FORMER PRESUMPTIVE SENTENCE AND THEREFORE HE SHOULD BE RE-SENTENCED PURSUANT TO STATE v. NATALE, 184 N.J. 458 (2005).

B. PETITIONER'S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE THAT [THE SENTENCING JUDGE] WAS PUNISHING PETITIONER, RATHER THAN THE CRIMES HE COMMITTED AND FAILED TO CONSIDER CERTAIN MITIGATING FACTORS.

C. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE DISPARITY IN [SENTENCING].

D. PETITIONER'S PLEA SHOULD BE VACATED BECAUSE HIS PLEA WAS NOT KNOWINGLY, VOLUNTARILY OR INTELLIGENTLY GIVEN.

The PCR court considered the petition on October 2, 2008. The court placed its decision on the record on that date, concluding that defendant's arguments were without merit. The court entered an order dated October 2, 2008, denying PCR. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL WHEN HIS POST-CONVICTION RELIEF ATTORNEY DID NOT ADEQUATELY REPRESENT HIM.

Defendant has filed a pro se supplemental brief in which he argues that the trial court should have granted him 280 days of jail credit. We reject these contentions and affirm.

Defendant argues that the PCR court erred by failing to conduct a hearing on his PCR petition. He asserts that he presented a prima facie claim of the ineffective assistance of counsel. We disagree.

Defendant's claim that he was denied the effective assistance of trial counsel is considered under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which has been adopted by our Supreme Court for review of ineffective-assistance-of-counsel claims raised under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

To prevail on such a claim, the defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To show that his attorney was deficient, the defendant must establish that the attorney's handling of the matter was "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 140 S. Ct. at 2066, 80 L. Ed. 2d at 695.

The defendant also must show that his attorney's deficient performance prejudiced his defense. Id. at 687, 140 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish prejudice, the defendant "must show that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Defendant contends that his trial attorney was deficient because he failed to argue that defendant should be re-sentenced pursuant to Natale. He also contends that the sentence imposed by the trial court was excessive because his trial attorney did not seek findings on certain mitigating factors.

However, as we stated previously, defendant was re-sentenced pursuant to Natale. The sentence was affirmed on appeal, thereby precluding any claim that the sentence was excessive. Moreover, there is no merit in defendant's claim that he was denied the effective assistance of counsel at sentencing. As the PCR court correctly observed, the record did not support findings on any additional mitigating factors, specifically factors one, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not cause or threaten serious harm); and eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's imprisonment would entail excessive hardship to himself or his dependents).

Defendant additionally argues that his trial attorney was deficient because he is purportedly serving a twenty-six year sentence with an eleven-year parole bar rather than the twenty-five-year term with a ten-year parole bar imposed by the trial court. In essence, defendant claims that he is serving a longer term than the term imposed because the trial court erroneously refused to award him jail credits for the time he was incarcerated in Middlesex County on the Middlesex County charges. Again, we disagree.

The record shows that when defendant was first sentenced on May 26, 2005, his trial attorney sought the jail credits at issue. The trial court pointed out that the credits would be applied towards his Middlesex County sentence and defendant could not be awarded the credits twice. Defense counsel nevertheless argued that the court had discretion to award defendant additional credits in the interest of justice. The court denied the application.

In our view, there is no merit to defendant's claim that he was denied the effective assistance of counsel because of the manner in which his attorney handled the issue of the jail credits. As noted, defendant's attorney raised the issue at the time defendant was sentenced. The trial court correctly found that defendant was not entitled to the credits under Rule 3:21-8. Furthermore, the court did not abuse its discretion by refusing to award defendant the additional credits in the interest of justice.

Defendant additionally argues that he was denied the effective assistance of counsel because his trial counsel failed to challenge his sentence on the grounds that his co-defendant received a more lenient sentence, and his Essex County sentence was longer than the sentences imposed upon him for similar offenses in other counties.

The PCR court found, however, that defendant's sentence could not be compared with that of his co-defendant because his co-defendant had cooperated with the police in their investigation. The court also found that the Essex County sentence was in accord with defendant's plea agreement, which defendant had entered knowingly, intelligently and voluntarily. The record supports the court's findings.

We are therefore satisfied that the PCR court correctly found that defendant had not been denied the effective assistance of trial counsel. Moreover, because defendant failed to present a prima facie case of ineffective assistance of counsel, and the record provided a sufficient basis to resolve defendant's claims, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant further argues that he was denied the effective assistance of PCR counsel. He contends that PCR counsel did not advance "salient arguments" and did not consult with trial counsel in order to obtain information that may have aided him in the presentation of defendant's claims. These arguments are of insufficient merit to warrant any discussion. R. 2:11-3(e)(2).

Affirmed.