STATE OF NEW JERSEY VS. ANDREW K. JIMENEZ (19-02-0119, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 14, 2020
• Docket: A-3958-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3958-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW K. JIMENEZ,

Defendant-Appellant.

Argued telephonically June 24, 2020 – Decided July 14, 2020

Before Judges Accurso and DeAlmeida.

On appeal from Superior Court of New Jersey, Law Division, Union County, Accusation No. 19-02-0119.

Stuart K. Santiago argued the cause for appellant.

Milton Samuel Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Milton Samuel Leibowitz, of counsel and on the brief).

PER CURIAM Andrew K. Jimenez pleaded guilty to possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a), in exchange for the State's

recommendation that he receive a Graves Act waiver, N.J.S.A. 2C:43-6.2 and

be sentenced in the third-degree range, and the dismissal of several other

second, third and fourth-degree charges. Defendant was sentenced in

accordance with that agreement to a three-year prison term, with one-year of

parole ineligibility. He appeals, raising only one issue for our consideration:

POINT I

THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO DEFENDANT'S COUNSELS' FAILURE TO FILE A MOTION TO SUPPRESS.

Specifically, defendant contends his two prior lawyers rendered

ineffective assistance for their failure to file a motion to suppress the unloaded

BB gun police found in the mini-bar refrigerator in defendant's motel room

after he signed a consent to search form. The State argues the claim "is not

properly before this court and should be raised in a petition for post -conviction

relief." It contends resolution of the claim requires an inquiry into what

defendant discussed with his counsel, which is nowhere in the record. The

State notes a Graves Act waiver is sometimes offered to resolve an indictment

while pre-trial motions are being considered. It does not offer that that's what

A-3958-18T1 2 occurred here, only that it is not uncommon, and there is nothing in the record

regarding the plea negotiations and no averment from defendant that he would

not have pleaded guilty but for counsel's alleged errors.

Although "[t]here is no rule that claims of ineffective assistance must

await a post-conviction relief proceeding or cannot be raised on direct appeal,"

State v. Hooper, 459 N.J. Super. 157, 174 (App. Div. 2019), they are not

ordinarily considered on direct appeal because they very often "involve

allegations and evidence that lie outside the trial record." State v. Castagna,

187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)).

That is the case here. The record is simply inadequate to evaluate defendant's

claims, and, indeed, we have nothing beyond appellate counsel's

representations as to what defendant's claims are. The record is devoid of any

sworn statement from defendant to support any claim of ineffective assistance

of his plea counsel.

Accordingly, we affirm defendant's conviction and sentence. Any claim

of ineffective assistance must be raised in a PCR petition as the record is

inadequate for its consideration here. See Preciose, 129 N.J. at 462-64.

Affirmed.

A-3958-18T1 3