STATE OF NEW JERSEY v. CHRISTOPHER GONZALEZ

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4218-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHRISTOPHER GONZALEZ,

     Defendant-Appellant.
________________________________

              Submitted November 27, 2017 – Decided December 7, 2017

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              07-08-1362.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Steven M. Gilson, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for   respondent  (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Christopher Gonzalez appeals the trial court's

dismissal      of   his   petition    for    post-conviction     relief    ("PCR")

without an evidentiary hearing.             He contends that his former trial
counsel and appellate counsel were constitutionally ineffective

by allegedly failing to protect his rights sufficiently under the

Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 to -15 ("the

IAD").   We agree with the PCR judge that defendant's claims of

ineffectiveness lacks merit and affirm.

     The underlying facts and procedural history that resulted in

defendant's conviction in 2008 of various crimes is set forth in

detail in this court's 2012 unpublished opinion on direct appeal,

and need not be repeated here.   See State v. Gonzalez, No. A-1802-

08 (App. Div. July 17, 2012), certif. denied, 
213 N.J. 389 (2013).

In essence, the State's proofs in two successive 2008 trials showed

that on July 21, 2006, defendant and a co-defendant forced their

way into the female victim's apartment, took money and other

valuables at gunpoint from the victim and her boyfriend, and

confined them to separate closets.

     Among other things, defendant was found guilty of first-

degree   armed   robbery,   second-degree   kidnapping,   conspiracy,

several weapons offenses, and other crimes.         The trial court

sentenced him to an aggregate term of thirty-two years, subject

to the parole ineligibility conditions of the No Early Release

Act, 
N.J.S.A. 2C:43-7.2.    The sentence is consecutive to custodial

time defendant received in the State of New York for unrelated

offenses.

                                  2                           A-4218-15T4
     After charges were brought in New Jersey against defendant

concerning the 2006 robbery incident, correctional authorities in

New York, where defendant was serving his New York sentence, sent

a letter dated July 12, 2007 to the Middlesex County Prosecutor

pursuant to the IAD.        The letter requested that defendant be

delivered to New Jersey and held in temporary custody here for

disposition of the Middlesex County charges.                  This letter was

accompanied by the requisite forms, N.J.S.A. 2A:159A-3(b), which

were signed by defendant.       The exact date on which the July 12

letter was received in New Jersey by the county prosecutor and the

court is not documented in the record.              In any event, it is

undisputed   that   defendant   was       transported   to     New   Jersey    as

requested.   Meanwhile, an indictment on the New Jersey charges was

issued by a Middlesex County Grand Jury on August 31, 2007.

     Article III of the IAD, which is codified at N.J.S.A. 2A:159A-

3, provides that whenever a prisoner from a party state has

criminal charges pending in another party state and a detainer has

been lodged against that prisoner, "he shall be brought to trial

within 180 days after he shall have caused to be delivered to the

prosecuting officer and the appropriate court of the prosecuting

officer’s    jurisdiction   written       notice   of   the    place   of     his

imprisonment and his request for a final disposition to be made

of the indictment, information or complaint[.]"           N.J.S.A. 2A:159A-

                                      3                                 A-4218-15T4
3(a).   Unless an exception applies, the State's failure to abide

by the 180-day time limit authorizes dismissal of the indictment

with prejudice.   N.J.S.A. 2A:159A-5(c).

     Here, trial was scheduled to convene in New Jersey on January

8, 2008, which was 180 days from the date of defendant's request

as set forth in the July 12, 2007 letter.     Although, as we have

noted, the actual date of New Jersey's receipt of the July 12,

2007 letter is unknown, it is clear that the trial date was

scheduled within the 180-day period, particularly since the letter

was transmitted through the United States mails with no indication

that it was sent by more expeditious means.

     The initial trial date of January 8, 2008 was adjourned twenty

days to January 28, 2008.    As reflected in pretrial transcripts,

the reason for the trial adjournment was that additional time was

needed to deal with DNA lab testing results that recently had been

served by the prosecutor on December 28, 2007.   Defendant's trial

counsel immediately forwarded the DNA results to a defense expert.

He also moved to exclude the State's DNA evidence, and to have the

initial planned trial date kept intact.

     The trial court denied the motion to exclude, and adjourned

the trial twenty days to January 28, 2008.     The trial commenced

on that date, and resulted in convictions on certain counts and a

hung jury on other counts.   The mistried counts were tried before

                                 4                          A-4218-15T4
a second jury in May-June 2008, resulting in defendant's acquittal

on a charge of aggravated sexual assault but his conviction on

kidnapping and conspiracy charges.

      Defendant's appellate counsel raised multiple arguments on

direct appeal, but did not allege an IAD violation.                       After we

affirmed     the   convictions     and     the     Supreme        Court      denied

certification, defendant filed the instant PCR petition, alleging

ineffective    assistance   of    counsel    relating       to    alleged      non-

compliance with the IAD.         The PCR court found those arguments

unavailing.

      Among other things, the PCR judge noted that Article III of

the IAD allow the statutory time frames to be extended if "the

court having jurisdiction of the matter [grants a] necessary or

reasonable continuance."         N.J.S.A. 2A:159A-3(a) (Article III);

N.J.S.A. 2A:159A-4(c) (Article IV). The judge noted that defendant

has "offered no compelling argument that the adjournment [here]

was   unreasonable."     Hence,    because       there   is      no   proven    IAD

violation,    defendant's   former       counsel    could     not     have     been

constitutionally ineffective.

      In his brief on the present appeal, defendant makes the

following point:

           THIS   MATTER  MUST   BE  REMANDED  FOR   AN
           EVIDENTIARY   HEARING    BECAUSE   DEFENDANT
           ESTABLISHED A PRIMA FACIE CASE OF COUNSELS'

                                     5                                     A-4218-15T4
            INEFFECTIVENESS FOR FAILING TO PURSUE THE
            STATE'S NONCOMPLIANCE WITH THE INTERSTATE
            AGREEMENT ON DETAINERS.

Having duly considered this contention, we affirm the denial of

defendant's PCR petition, substantially for the reasons set forth

in the PCR judge's April 8, 2016 written opinion.                  Although there

are a few minor and inconsequential errors in passages in that

opinion, the substance of the PCR judge's analysis is clearly

correct as a matter of law.

     The    brief   adjournment    of       the    trial,    granted     to     enable

defendant's trial counsel to respond to and deal with the recently-

generated DNA lab report, was manifestly reasonable.                    Indeed, the

adjournment no doubt aided defendant's attorney in preparing for

trial.     There is no indication of dilatory conduct by the State.

     Defendant      has   not   satisfied         either   prong   of    the     Sixth

Amendment     criteria    for   ineffectiveness            under   Strickland         v.

Washington, 
466 U.S. 668, 694, 
104 S. Ct. 2052, 2068, 
80 L. Ed. 2d 674, 697 (1984), as there is no proof of either counsel's

deficient performance or actual prejudice to defendant.

     Affirmed.




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