STATE OF NEW JERSEY VS. ALBERTO SALAZAR (01-03-0349, MIDDLESEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-4974-18

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ALBERTO SALAZAR,

     Defendant-Appellant.
_______________________

                    Submitted January 13, 2021 – Decided May 12, 2021

                    Before Judges Geiger and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 01-03-
                    0349.

                    Alberto Salazar, appellant pro se.

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Albert Cernadas, Jr., Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Alberto Salazar appeals from a May 14, 2019 order denying

his second petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm, substantially for the reasons set forth in Judge Michael A.

Toto's written opinion. We add only the following brief remarks.

      Following a jury trial, defendant was convicted of second-degree reckless

manslaughter, N.J.S.A. 2C:11-4(b)(1), first-degree felony murder, N.J.S.A.

2C:11-3(a)(3), and second-degree robbery, N.J.S.A. 2C:15-1. Defendant was

sentenced to a thirty-year term of imprisonment without parole. Defendant

appealed his conviction, and we affirmed in an unpublished opinion. State v.

Salazar, A-6235-03 (App. Div. Feb. 6, 2008) (slip op. at 2). The Supreme Court

denied certification. State v. Salazar, 

195 N.J. 523

(2008).

      In September 2008, defendant filed a petition for PCR, which was denied

without an evidentiary hearing.     Defendant appealed, and we reversed and

remanded for an evidentiary hearing. State v. Salazar, A-2504-11 (App. Div.

May 21, 2014) (slip op. at 2). In April 2015, following the hearing on remand,

defendant's petition for PCR was again denied. We affirmed that decision in an

unpublished opinion. State v. Salazar, A-0058-15 (App. Div. Oct. 6, 2017) (slip

op. at 2), and defendant's petition for certification was denied. State v. Salazar,

233 N.J. 214

(2018).


                                                                             A-4974-18
                                        2
      In November 2018, more than three years after the denial of his first PCR

petition, defendant filed a second petition. Defendant claimed his PCR counsel

was ineffective in failing to present an expert witness to establish an intoxication

defense. Defendant also contended that PCR counsel was ineffective for not

challenging the indictment on the basis that the prosecutor was related to the

victim and, therefore, had a conflict of interest. Finally, defendant averred that

PCR counsel was ineffective for refusing to contest the trial judge's decision to

deny his application to change venue.

      On May 14, 2019, Judge Toto denied defendant's petition after finding

that it was time-barred under Rule 3:22-12(a)(2). Notwithstanding, the judge

proceeded to assess the merits of defendant's contentions and concluded that he

failed to establish a prima facie ineffective assistance of counsel claim under

Strickland v. Washington, 

466 U.S. 668

, 687 (1984).

      On appeal, defendant raises the following argument for our consideration:

            POINT I

            THE PCR COURT ERRED BY DISMISSING
            DEFENDANT'S   SECOND    PCR   PETITION
            WITHOUT ORAL ARGUMENT, OR ALLOWING
            HIM AN OPPORTUNITY TO ARGUE EXCEPTIONS
            TO ANY POTENTIAL PROCEDURAL BARS, AND
            BY NOT ADDRESSING HIS CLAIMS THAT HIS
            PCR ATTORNEY AND PCR APPELLATE
            ATTORNEY WERE INEFFECTIVE FOR FAILING

                                                                              A-4974-18
                                         3
              TO:   (1) INVESTIGATE AND PROVIDE AN
              EXPERT WITNESS IN ORDER TO ESTABLISH AN
              INTOXICATION DEFENSE; (2) TO RAISE THE
              ALLEGED TRIAL COURT ERROR IN THE JURY
              INSTRUCTION    THEREFORE   THE   ORDER
              SHOULD BE REVERSED.

        Where a PCR judge does not conduct an evidentiary hearing, we "conduct

a de novo review of both the factual findings and legal conclusions of the PCR

court." State v. Blake, 

444 N.J. Super. 285

, 294 (App. Div. 2016) (quoting State

v. Harris, 

181 N.J. 391

, 421 (2004)).          We need not address defendant's

substantive arguments because we agree with Judge Toto that defendant's

second petition for PCR is time-barred under Rule 3:22-12(a)(2) and Rule 3:22-

4(b).

        Rule 3:22-12(a)(2) imposes strict time limits on the filing of a second PCR

petition, requiring a defendant to file within one year of the latest of three

defined events:

              (A) the date on which the constitutional right asserted
              was initially recognized by the United States Supreme
              Court or the Supreme Court of New Jersey, if that right
              has been newly recognized by either of those Courts
              and made retroactive by either of those Courts to cases
              on collateral review; or

              (B) the date on which the factual predicate for the relief
              sought was discovered, if that factual predicate could
              not have been discovered earlier through the exercise
              of reasonable diligence; or

                                                                             A-4974-18
                                          4
              (C) the date of the denial of the first or subsequent
              application for post-conviction relief where ineffective
              assistance of counsel that represented the defendant on
              the first or subsequent application for post-conviction
              relief is being alleged.

      In this case, subsection (A) is inapplicable because defendant does not

rely on a new constitutional right. Likewise, subsection (B) does not apply

because both the toxicology report and defendant's statement to police were

available at the time the first PCR petition was filed. Moreover, we agree with

Judge Toto that the information regarding the prosecutor – that she was related

to the victim – was easily discoverable "through the exercise of reasonable

diligence."    Even under subsection (C), however, defendant's second PCR

petition is untimely because it was filed more than a year after the 2015

dismissal of the first PCR petition.

      The time bar under Rule 3:22-12(a)(2) may not be ignored or relaxed.

State v. Jackson, 

454 N.J. Super. 284

, 292-94 (App. Div. 2018); see also R. 1:3-

4(c) ("Neither the parties nor the court may . . . enlarge the time specified by . .

. R. 3:22-12 . . . ."). Because defendant's second PCR petition was filed more

than three years after the denial of his first petition, the latter was properly

denied as untimely. Additionally, since defendant's second PCR petition was

time-barred, an evidentiary hearing was not required. See State v. Brewster, 429


                                                                              A-4974-18
                                         

5
N.J. Super. 387

, 401 (App. Div. 2013) ("If the court perceives that holding an

evidentiary hearing will not aid the court's analysis of whether the defendant is

entitled to post-conviction relief, . . . then an evidentiary hearing need not be

granted." (omission in original) (quoting State v. Marshall, 

148 N.J. 89

, 158

(1997))).

      Affirmed.




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