SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2424-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN A. ROSARIO, a/k/a

JOSE GOMEZ, and

KING BLACK ROSE, 

Defendant-Appellant.

__________________________

Submitted March 2, 2020 –

Before Judges Rothstadt and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Law Division, Bergen County, Indictment No. 05-12-

2152.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Kisha M.S. Hebbon, Designated Counsel, 

on the brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (Jaimee M. Chasmer, Assistant Prosecutor, 

of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

September 4, 2020
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PER CURIAM

Defendant Juan Rosario appeals from the November 8, 2018 order of the 

Law Division denying his petition for post-conviction relief (PCR), relating to 

his November 18, 2011 judgment of conviction, on the basis that the 

application was time-barred by Rule 3:22-12. Defendant, in addition to 

making arguments regarding ineffective assistance of both his trial and 

appellate counsel, argues that the statutory time bar for filing his PCR petition 

should have been relaxed in the interests of justice. We agree that defendant 

did not demonstrate excusable neglect to justify filing his petition more than 

seven months late, and affirm, substantially for the reasons set forth by Judge 

James X. Sattely in his thorough written opinion.

We discern the following facts from the record. In February 2005, 

defendant, the highest-ranking member of the Latin Kings in Passaic County, 

was involved in two related criminal incidents. The first involved setting up a 

sham drug deal to capture Ralph Pinto and Paul Ricciardi to retaliate against 

them for robbing Jose Vega, a high-ranking member of the Latin Kings. 

During the sham drug deal, Pinto was fatally shot and Ricciardi was wounded. 

Defendant was also involved in the attempted murder of Monica Penalba, a 
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friend of several Kings members. Defendant ordered that Penalba be killed 

after she witnessed the events involving Pinto and Ricciardi.1

Pertinent to the present appeal, defendant's trial for the attempted murder 

of Penalba was held between June and July 2011. The jury returned a verdict

convicting defendant on counts of attempted murder, N.J.S.A. 2C:5-1 and 

N.J.S.A. 2C:11-3(a); aggravated assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:12-

1(b)(1); and conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 

2C:11-2(a)(1)(2). An amended judgment of conviction from this trial was 

entered against defendant on November 18, 2011, and defendant received an 

aggregate sentence of twenty years in prison for these charges.

2

 

1

 Defendant was indicted in December 2005 on twenty-two separate counts 

stemming from these incidents. The trial judge severed the indictment to 

distinguish counts one through seventeen of the indictment, which concerned 

defendant's actions with respect to the murder of Pinto and assault of 

Ricciardi, from counts eighteen through twenty-two, which concerned 

defendant's actions with respect to the attempted murder of Penalba. 

2

 A separate trial was held in 2008 on defendant's charges related to Pinto and 

Ricciardi, for which he was also convicted on several charges. Defendant 

appealed his conviction and sentence in that trial, which we affirmed in an 

unpublished opinion. State v. Vega, Nos. A-4673-08, A-5311-08 (App. Div. 

Apr. 10, 2012) (slip op. at 70). The Supreme Court denied certification. State 

v. Rosario, 212 N.J. 288 (2012). Defendant then filed a petition for PCR as to 

his 2008 trial, which the trial court denied in a written opinion entered on May 

28, 2014. Defendant filed a notice of appeal on September 24, 2014, appealing 

the trial court's denial of his petition for PCR. We thereafter affirmed the trial 
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Defendant appealed his conviction and sentence in his 2011 trial, which 

we affirmed in an unpublished opinion. State v. Rosario, No. A-4676-11 

(App. Div. Sep. 13, 2016) (slip op. at 20). The Supreme Court denied

certification. State v. Rosario, 230 N.J. 490 (2017). Defendant then filed the 

instant application for PCR on July 10, 2017 as to his 2011 conviction, and a 

hearing was held on his application on October 2, 2018. Rejecting defendant's 

contention that the Rule 3:22-12 time bar was subject to relaxation pursuant to 

Rule 1:1-2, the PCR judge entered an order on November 8, 2018 denying 

defendant's application for failure to establish excusable neglect. This appeal 

followed.

On appeal, defendant raises the following point headings for our 

consideration:

POINT I: THE TRIAL COURT ERRED IN 

FINDING THAT DEFENDANT'S PETITION FOR 

[PCR] WAS TIME BARRED BECAUSE THE 

INTERESTS OF JUSTICE WARRANT 

RELAXATION OF THE TIME BAR.

POINT II: THE TRIAL COURT ERRED IN 

DENYING DEFENDANT'S PETITION FOR [PCR] 

WITHOUT AFFORDING HIM AN EVIDENTIARY 

court's decision denying that PCR application. State v. Vega, Nos. A-278-14, 

A-655-14 (App. Div. May 5, 2016) (slip op. at 26). 
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HEARING TO DETERMINE THE MERITS OF HIS 

CONTENTION THAT HE WAS DENIED THE 

RIGHT TO THE EFFECTIVE ASSISTANCE OF 

TRIAL AND APPELLATE COUNSEL.

a. THE PREVAILING LEGAL PRINCIPLES 

REGARDING CLAIMS OF INEFFECTIVE 

ASSISTANCE OF COUNSEL, EVIDENTIARY 

HEARINGS AND PETITIONS FOR [PCR].

b. TRIAL COUNSEL RENDERED INEFFECTIVE 

LEGAL REPRESENTATION BY VIRTUE OF HIS 

FAILURE TO INTERVIEW JUAN VERAS AND TO 

CALL HIM AS A WITNESS AT TRIAL. 

c. TRIAL COUNSEL RENDERED INEFFECTIVE 

LEGAL REPRESENTATION BY VIRTUE OF HIS 

FAILURE TO OBJECT TO PREJUDICIAL 

TESTIMONY.

d. TRIAL COUNSEL RENDERED INEFFECTIVE 

LEGAL REPRESENTATION BY VIRTUE OF HIS 

FAILURE TO TIMELY OBJECT TO SECURITY 

MEASURES ADOPTED BY THE COURT.

e. TRIAL COUNSEL RENDERED INEFFECTIVE 

LEGAL REPRESENTATION BY VIRTUE OF HIS 

FAILURE TO ASK FOR LESSER-INCLUDED 

CHARGES. 

f. APPELLATE COUNSEL RENDERED 

INEFFECTIVE LEGAL REPRESENTATION BY 

VIRTUE OF HIS FAILURE TO RAISE 

DEFENDANT'S CLAIMS OF TRIAL COURT 

ABUSE OF DISCRETION ON APPEAL.

g. DEFENDANT IS ENTITLED TO A REMAND TO 

THE TRIAL COURT TO AFFORD HIM AN 
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EVIDENTIARY HEARING TO DETERMINE THE 

MERITS OF HIS CONTENTION THAT HE WAS 

DENIED THE EFFECTIVE ASSISTANCE OF 

TRIAL AND APPELLATE COUNSEL. 

We reject defendant's argument that the interests of justice required the 

PCR judge to relax the time constraints of the Rule. A PCR petition shall be 

filed no later than "[five] years after the date of entry pursuant to Rule 3:21-5 

of the judgment of conviction that is being challenged." R. 3:22-12(a)(1). The 

time bar may be relaxed if a defendant establishes that the delay "was due to

[the] defendant's excusable neglect and that there is a reasonable probability 

that if the defendant's factual assertions were found to be true enforcement of 

the time bar would result in a fundamental injustice." Ibid. Rule 3:22-12(a)(1) 

was amended, effective February 2010, to require that a defendant also 

demonstrate that a "fundamental injustice" would occur if the time to file were 

not extended. Pressler & Verniero, Current N.J. Court Rules, R. 3:22-12 

(2015). 

The concept of excusable neglect encompasses more 

than simply providing a plausible explanation for a 

failure to file a timely PCR petition. To determine 

whether a defendant has asserted a sufficient basis for 

relaxing the Rule's time restraints, we "should 

consider the extent and cause of the delay, the 

prejudice to the State, and the importance of the 

petitioner's claim in determining whether there has 

been an 'injustice' sufficient to relax the time limits."
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State v. Afanador, 151 N.J. 41, 52 (1997). Excusable 

neglect provides the means for a court to address and 

correct a criminal judgment where "adherence to it 

would result in an injustice." State v. McQuaid, 147 

N.J. 464, 485 (1997)[.]

[State v. Norman, 405 N.J. Super. 149, 159 (App. Div.

2009).]

The Court waived the five-year time bar in Norman because there was no 

evidential support to sustain the defendant's guilty plea. Norman, 405 N.J.

Super. at 160. By contrast, here there is no such demonstration of injustice. 

Defendant was sentenced on November 18, 2011. He did not file for 

PCR until July 10, 2017; five years and seven months after his conviction and 

thus out of time. "When determining whether to relax the time bar . . . a court 

should consider 'the extent and cause of the delay, the prejudice to the State, 

and the importance of the petitioner's claim in determining whether there has 

been an "injustice" sufficient to relax the time limits.'" McQuaid, 147 N.J. at 

485 (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). The petition itself 

must include the claimed grounds for excusable neglect. State v. Cann, 342 

N.J. Super. 93, 101-02 (App. Div. 2001). Defendant's petition, however, did 

not allege any reasons to explain the delay in filing his PCR petition. In that 

regard, defendant's direct appeal of his 2011 conviction did not toll the 

requirement that he file his PCR application within the required timeframe. 
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See State v. Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986) (determining 

that a defendant’s direct appeal of their conviction would not toll the five-year 

requirement because Rule 3:22-12 contains no such provision and because our 

Supreme Court has not held differently). Therefore, we conclude there are no 

compelling, extenuating circumstances to excuse the lengthy delay nor 

sufficient proof of a "fundamental injustice." R. 3:22-12(a)(1)(A).

3

 

While defendant's PCR application was indisputably time-barred, the

PCR judge also addressed his application on the merits. Although not 

necessary to our decision, in applying the test developed in Strickland v. 

Washington, 466 U.S. 668, 687 (1984) as applied to our courts by State v. 

Fritz, 105 N.J. 42, 66-67 (1987), we agree with the PCR judge's conclusion 

that defendant's substantive arguments are without merit for the reasons 

expressed by the judge in his well-reasoned and thorough thirty-six-page 

written opinion. 

To the extent we have not addressed any remaining arguments, we

determine that they are insufficient to warrant discussion in a written opinion. 

See R. 2:11-3(e)(2). 

3

 While the PCR judge refers to November 18, 2011 in the analysis of his 

opinion as defendant's date of sentencing, we briefly clarify that the date is 

relevant because his amended judgment of conviction was entered on this date. 
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Affirmed.