                        NOT FOR PUBLICATION WITHOUT THE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-3413-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HAMID ABDUL-SHABAZZ,

     Defendant-Appellant.
______________________________

              Submitted February 13, 2018 – Decided June 6, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              04-01-0037.

              Joseph E. Krakora, Public Defender, attorney
              for the appellant (Adam W. Toraya, Designated
              Counsel, on the brief).

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Christopher W. Hsieh,
              Chief Assistant Prosecutor, of counsel and on
              the brief).

              Appellant filed a pro se supplemental brief.


PER CURIAM
     Defendant Hamid Abdul-Shabazz appeals from an order denying

his second petition for post-conviction relief (PCR) following an

evidentiary hearing.     We affirm.

     On March 3, 2006, a jury found defendant guilty of first-

degree    robbery;   first-degree   attempted     murder;   fourth-degree

aggravated assault; and second-degree possession of a weapon for

an unlawful purpose (collectively, the robbery charges).1           After

reaching its verdict, the jury found defendant guilty of second-

degree certain persons not to have a weapon.                Defendant was

sentenced on August 25, 2006, to an aggregate prison term of

eighteen years subject to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.    We affirmed his conviction and sentence on direct

appeal, State v. Abdul-Shabazz, No. A-0305-06 (App. Div. Feb. 29,

2008), and his petition for certification was denied, 195 N.J. 523

(2008).

     Almost three months after certification was denied, defendant

filed a PCR petition alleging trial counsel was ineffective because

he failed to meet with the victim and the victim's mother to

discuss the victim's alleged intention to recant his out-of-court

identification of defendant as his assailant; failed to file a

motion to suppress the victim's out-of-court identification as a


1
    Defendant was found      not    guilty   of   third-degree   unlawful
possession of a weapon.

                                    2                             A-3413-15T4
product of an illegal arrest; and failed to file a motion to obtain

all the photographs in a database to argue to the jury.            We

affirmed the PCR court's finding that defendant failed to establish

a prima facie claim of ineffective assistance of counsel under the

well-settled two-prong test set forth in Strickland v. Washington,

466 U.S. 668, 687 (1984), State v. Abdul-Shabazz, No. A-2531-11

(App. Div. Nov. 21, 2013), and our Supreme Court denied defendant's

petition for certification, 217 N.J. 624 (2014).

     Shortly thereafter, on July 21, 2014, defendant filed a pro-

se motion2 to correct an illegal sentence under Rule 3:21-10(b).

Counsel was subsequently assigned to represent defendant.    During

the PCR evidentiary hearing, the judge realized there was           a

conflict and recused himself, resulting in Judge Randal C. Chiocca

taking over and conducting the evidentiary hearing anew.

     At the hearing, defendant contended the court failed to

conduct a pre-trial conference under Rule 3:9-1(e)3 to advise him


2
   Defendant's filing also included motions to compel discovery
previously ordered in the first PCR proceedings, and to convert
the gap-time credit awarded to jail-time credit, which were both
denied, and we will not address them because they are not the
subject of this appeal.
3
  In 2016, the rule was restructured in order to more clearly
follow the temporal arrangement of pre-trial events, thus
paragraph (e) was re-designated paragraph (f). Since the
proceedings in question took place before the rule change, the
judge and the parties cite paragraph (e), which was in effect at


                                3                           A-3413-15T4
of the maximum exposure he faced in the event that he was found

guilty at trial.   He also claimed counsel was culpable for this

error because counsel failed to bring it to the court's attention

that such conference should be held.   Defendant claimed that if

the court or counsel had made him aware of the prison time he

faced, he would have accepted the State's plea offer and would not

have gone to trial.    He furthered asserted that after he was

indicted for unrelated homicide charges4 during the pendency of

the robbery charges, he was never advised that a prison sentence

on the robbery charges could run consecutively to the sentence

that was eventually imposed on the homicide charges when he pled

guilty to robbery and certain persons not to have a weapon.5

     Trial counsel and defendant provided conflicting testimony

regarding the advice counsel gave concerning the robbery charges

plea offer and defendant's desire to go to trial. Counsel recalled

that defendant rejected the plea offer – something less than a



that time. To avoid confusion, we stay with the reference to
paragraph (e).
4
  Defendant was indicted on four counts of murder, four counts of
first-degree robbery, a third-degree weapons offense, a second
degree-weapons offense, and a second-degree certain persons not
to have weapon.
5
   Defendant was sentenced to a twelve-year term for the homicide
charges to run consecutive to the eighteen-year NERA sentence he
received for the robbery charges.

                                4                          A-3413-15T4
fifteen-year term, perhaps a twelve-year term – and that defendant

wanted to use alibi witnesses at trial.    Counsel further stated

that he explained to defendant the exposure he faced if convicted.

According to defendant, counsel gave no such advice in any of

their three pre-trial meetings.

     In his oral decision, Judge Chiocca declared that he was not

treating the motion as one to correct an illegal sentence but as

a request for PCR, because it did not directly challenge the

sentence imposed by the sentencing judge; his direct appeal from

his sentence was denied; and he seeks to challenge the pre-trial

process.   The judge denied PCR on both procedural and substantive

grounds.

     Judge Chiocca found defendant's contention, that a Rule 3:9-

1(e) conference was not held, is barred under Rule 3:22-12(a)(2)

because it could have been raised in his first PCR petition.       He

specifically found that "it's beyond any reasonable doubt that the

defendant knew what the factual predicate [– a lack of Rule 3:9-

1(e) conference –] for the relief sought before he filed his first

. . . PCR where he was represented by able counsel."   Despite this

determination, the judge addressed the merits of Jenkins' claim

and found it had no merit.   In crediting counsel's testimony and

rejecting defendant's testimony, the judge found that counsel

advised defendant of the exposure he faced if he declined the

                                  5                         A-3413-15T4
State's plea offer and lost at trial, and thus, "defendant suffered

no prejudice as a result of not having a formal pretrial conference

in strict accordance with Rule 3:9-1(e)."   The judge elaborated:

          [Defendant] exercised his right to go to trial
          with the required full knowledge of the
          potential consequences[,] which I find he was
          fully informed, despite the fact that a formal
          pretrial conference was not conducted on any
          record before this Court. As a result, I'm
          going to deny this motion.

As for defendant's contention that when he rejected the plea offer

he was not advised he could be subject to a consecutive prison

term if convicted on the pending robbery charges, Judge Chiocca

found "[t]here's nothing in [Rule 3:9-1(e)] or otherwise call[ed]

to the court's attention that construes that language to [apply

to] all other charges that the defendant may have had under other

indictments."

     In this appeal, defendant argues:

          POINT I

          THE PCR COURT'S ORDER SHOULD BE REVERSED AND
          THE DEFENDANT'S CONVICTION VACATED BECAUSE,
          PRIOR TO THE TRIAL, HE RECEIVED INEFFECTIVE
          ASSISTANCE OF COUNSEL REGARDING THE PLEA OFFER
          THAT WAS BEING MADE TO HIM AND THE MAXIMUM
          EXPOSURE HE FACED.

          POINT II

          THE COURT ERRED IN DENYING THE DEFENDANT'S PCR
          BECAUSE AT THE TIME OF THE PLEA NEGOTIATIONS
          HE WAS ASSERTING HIS INNOCENCE AND HIS RIGHT
          TO GO TO TRIAL.

                                 6                          A-3413-15T4
             POINT III

             THE COURT MISAPPLIED ITS DISCRETION IN
             APPLYING [RULE] 3:22-4, AS A PROCEDURAL BAR
             AGAINST THE DEFENDANT'S FILING FOR POST
             CONVICTION RELIEF IN THIS CASE.

      In a pro se supplemental brief, defendant argues in a single

point:

             THE PCR COURT JUDGE ABUSED HIS DISCRETION IN
             DENYING RELIEF, AND BY IMPOSING A PROCEDURAL
             BAR TO DEFENDANT'S CLAIM WITHOUT AFFORDING
             COUNSEL A CHANCE TO ARGUE ANY POTENTIAL
             EXCEPTIONS TO THE BAR, ESPECIALLY, AFTER THE
             INITIAL JUDGE HEARING THIS MATTER HAD DENIED
             THE STATE'S PROCEDURAL BAR ARGUMENTS.

      Having   considered   defendant's    arguments   in   light    of   the

record and applicable legal standards, they lack sufficient merit

to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and

we affirm substantially for the reasons set forth by Judge Chiocca

in his well-reasoned oral decision.        We add only the following.

      In accordance with Rule 3:22-12(a)(1), a PCR petition must

be filed within five years after the entry of the judgment of

conviction sought to be challenged.        Rule 3:22-12(a)(2) provides

that a second PCR petition must be filed within one year of either

the   date   that   the   constitutional   right   asserted    was     newly

recognized by the United States Supreme Court or New Jersey Supreme

Court; or the date on which the factual predicate for the relief

sought was discovered, if the predicate could not have been

                                   7                                 A-3413-15T4
discovered earlier with reasonable diligence; or the date of the

denial of the first PCR petition with ineffective assistance of

counsel that represented defendant on the first petition is being

alleged.   And under Rule 3:22-4(b), a second PCR petition must be

dismissed if it is not timely under Rule 3:22-12(a)(2).       While

these time limits may be waived to prevent a fundamental injustice,

they must be viewed in light of their dual key purposes: to ensure

that the passage of time does not prejudice the State's retrial

of a defendant and to respect the need for achieving finality.

State v. DiFrisco, 187 N.J. 156, 166-67 (2006).

     We are satisfied that defendant's second PCR petition, filed

eight years after his judgment of conviction, and a few weeks

after the denial of his first PCR, is clearly barred under Rule

3:22-12(a)(2).   Defendant has articulated no basis to relax the

clear restrictions imposed by this rule concerning a second PCR

petition by a showing of excusable neglect or manifest injustice.

He does not rely on a new rule of constitutional law.   His factual

predicate, that he was not advised of his trial exposure, was

readily discoverable earlier and should have been raised, in his

first PCR petition.   Finally, the second petition did not allege,

nor was it argued before Judge Chiocca, that the first PCR counsel

provided ineffective assistance by not arguing that a Rule 3:9-

1(f) conference was not held.   Thus, defendant's argument that his

                                 8                          A-3413-15T4
first PCR counsel did not raise the contention in the first

petition should not be considered as it was raised for the first

time before us.       See State v. Robinson, 200 N.J. 1, 20 (2009).

       Because Judge Chiocca's ruling on the merits is based upon

an evidentiary hearing, we must uphold his factual findings, "so

long   as    those   findings    are     supported    by   sufficient   credible

evidence in the record."              State v. Rockford, 213 N.J. 424, 440

(2013) (quoting Robinson, 200 N.J. at 15).             Additionally, we defer

to a judge's findings that are "substantially influenced by [the

trial judge's] opportunity to hear and see the witnesses and to

have the 'feel' of the case, which a reviewing court cannot enjoy."

Ibid. (alteration in original) (quoting Robinson, 200 N.J. at 15).

We owe particular deference to the trial judge's credibility

determinations.       See State v. Locurto, 157 N.J. 463, 474 (1999).

Considering these guidelines, we see no reason to disturb Judge

Chiocca's finding that counsel fully informed defendant of the

penal consequences of rejecting the plea offer and finding of

guilty      at   trial,   as   well    as   the   possibility   of   consecutive

sentences if he was convicted of the unrelated homicide charges.

       Affirmed.




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