                        NOT FOR PUBLICATION WITHOUT THE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-3539-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JORDAN VELEZ,

     Defendant-Appellant.
_________________________________

              Submitted May 31, 2017 – Decided August 23, 2017

              Before Judges Rothstadt and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. 13-
              10-2059.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alan I. Smith, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Frances Tapia Mateo,
              Assistant Prosecutor, on the brief).


PER CURIAM

        Defendant Jordan Velez appeals from an order denying his

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

hearing.      We affirm.
     Defendant      pled   guilty    to        first-degree   robbery,   N.J.S.A.

2C:15-1.     In accordance with the plea agreement, Judge John A.

Young sentenced him to a downgraded prison term of seven years

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant

did not file a direct appeal, but rather petitioned for PCR

alleging that: his due process right to a waiver hearing was

denied; his trial counsel was ineffective for not filing a motion

to dismiss the robbery charge; his guilty plea was not made

knowingly    and    voluntary;       his       sentence   was    excessive;     and

cumulative errors.

     In a thorough and cogent written opinion, issued with the

February 16, 2016 order denying PCR, Judge Young rejected those

arguments.    Based upon his review of the record, he found that

defendant received a waiver hearing.                 The judge determined that

there was no factual or legal basis for trial counsel to file a

motion to dismiss the robbery charge.                 The grand jury witnesses

established that defendant used a firearm to commit the robbery,

thereby putting the victim in fear of immediate bodily injury and

satisfying    the   charge   of     first-degree       robbery   under   N.J.S.A.

2C:15-1(a)(2).      Defendant's plea allocution further confirmed the

charge was appropriate when he stated that he gestured to indicate

he had a handgun while demanding the victim's property.                  The judge

also found defendant's PCR petition failed to present any evidence

                                           2                               A-3539-15T1
that he did not enter his plea knowingly and voluntary.          Lastly,

after   finding   that   defendant's   excessive   sentence   claim    was

procedurally barred under N.J.S.A. 3:22-4(a) because it should

have been filed in a direct appeal, the judge also found there was

no merit to the claim as counsel argued mitigating factors and

imposition of a minimum sentence, and defendant did not contend

there   were   mitigating   factors    that   should   been   argued    at

sentencing.

     On appeal, defendant raises the following issue:

           THE ORDER DENYING POST-CONVICTION RELIEF
           SHOULD   BE    REVERSED   BECAUSE    DEFENDANT
           ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
           THAT THE "GESTURE" HE MADE DID NOT CONSTITUTE
           IN THE MIND OF THE VICTIM AN ACTUAL AND
           REASONABLE BELIEF THAT HE WAS ARMED WITH A
           DEADLY WEAPON.

     Having reviewed the record in light of the applicable legal

standards, we affirm for the reasons stated in Judge Young's

opinion.   We add the following.       We agree with the State that

defendant's contention that the factual basis elicited for his

plea supports a second-degree robbery, not a first-degree robbery,

is procedurally barred under State v. Arthur, 184 N.J. 307, 327

(2005), since it was not raised below, and under Rule 3:22-4(a),

it should have been raised on direct appeal.

     Affirmed.



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