Opinion
DOCKET NO. A-1794-10T4
04-03-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NORBERTO CARABALLO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief; Susan Berkow-Boser, Special Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-09-1338.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief; Susan Berkow-Boser, Special Assistant Prosecutor, on the brief). PER CURIAM
Defendant was indicted for felony murder, in violation of N.J.S.A. 2C:11-3(a)(3); two counts of armed robbery, in violation of N.J.S.A. 2C:15-1; and numerous other charges. Defendant entered into a plea bargain under which he agreed to plead guilty to the two counts of armed robbery and the State agreed to dismiss the other charges, including felony murder, and to recommend an aggregate sentence of not more than twenty years imprisonment, subject to the 85% period of parole ineligibility mandate by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On December 8, 2000, the trial court sentenced defendant in accordance with the plea agreement to concurrent twenty-year terms of imprisonment for the two armed robberies, subject to the period of parole ineligibility mandated by NERA. After hearing the case on an excess sentence calendar, see R. 2:9-11, this court affirmed defendant's sentence by an order entered on January 8, 2002. State v. Caraballo, No. A-3577-00.
On July 24, 2009, eight-and-a-half years after entry of the judgment of conviction and seven-and-a-half years after affirmance of that conviction on his direct appeal, defendant filed a petition for post-conviction relief. The trial court denied the petition by a written opinion. The court concluded that the petition was time-barred because it had not been filed within the five-year period allowed by Rule 3:22-12 and that defendant had not shown the "excusable neglect" or "extraordinary circumstances" required to justify an extension of that time. The court also concluded that defendant had not made a prima facie showing of ineffective assistance of his trial counsel and that there was no basis for defendant's argument that his sentence was illegal.
On appeal from the denial of his petition, defendant presents the following arguments:
POINT ONE:
MR. CARABALLO PROVIDED A FACTUAL BASIS FOR SECOND-DEGREE ROBBERY, NOT FIRST-DEGREE ARMED ROBBERY, AND AS SUCH HIS SENTENCE IS ILLEGAL AND HE SHOULD BE RESENTENCED TO A TERM OF FIVE TO TEN YEARS; IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE FOR ALLOWING MR. CARABALLO TO BE SENTENCED FOR A FIRST-DEGREE CRIME WHEN HE PLED GUILTY TO A SECOND-DEGREE CRIME, SO THE MATTER MUST BE REMANDED FOR RESENTENCING TO A TERM OF FIVE TO TEN YEARS.
POINT TWO:
THE PCR COURT ERRED IN DENYING MR. CARABALLO'S CLAIM THAT HIS SENTENCE WAS ILLEGAL BECAUSE HIS MORE CULPABLE CO-DEFENDANTS RECEIVED LOWER SENTENCES.
POINT THREE:
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE HIS FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT, THERE WAS NO PREJUDICE TO THE STATE, AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.
A. The Time Bar Should be Relaxed Because Defendant's Delay in Filing His PCR Petition Was Due
to Excusable Neglect.
B. The Time Bar Should be Relaxed in The Interests of Justice.
We affirm substantially for the reasons set forth in the trial court's written decision. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).
We only note that the plea transcript clearly shows that defendant provided a factual basis for his guilty pleas to the two counts of armed robbery:
THE COURT: Were weapons displayed during the course of the robbery or was there a threat to cause immediate bod --
THE DEFENDANT: Oh, yeah.
THE COURT: Go ahead.
MR. FETKY: I am sorry.
Q. During the course of the robbery were the individuals threatened?
A. Um, putting a gun to their face I believe that's threatening.
Q. Yes. So somebody put a gun to their face to the best of your knowledge?
A. Yes.
Q. Who was that?
A. Marcus Vargas and Dennis Galan.
Q. And you saw that?
A. Yes.
Q. Is that when — is that when you left?
A. That's — that's when I left. Patrick D'Aiuto was behind me and I mean, yeah, Patrick D'Aiuto. I knew he didn't have no gun because he hand me the wallet.
Q. So he handed you the wallet, Mr. Figueroa's wallet and you left?
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION