NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2505-05T32505-05T3

A-2581-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTIN R. TACCETTA,

Defendant-Appellant.

___________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MARTIN R. TACCETTA,

Defendant-Respondent.

___________________________

Argued November 13, 2007 — Decided

Before Judges Lintner, Graves and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. SGJ-272-90-1.

Steven B. Duke, of the Connecticut bar, admitted pro hac vice, argued the cause for appellant in A-2505-05 and respondent in A-2581-05 (Bio & Larraca and Mr. Duke, attorneys; Marco A. Larraca and Mr. Duke, on the brief).

Robert E. Bonpietro, Deputy Attorney General, argued the cause for appellant A-2581-05 and respondent A-2505-05 (Anne Milgram, Attorney General, attorney; Mr. Bonpietro, of counsel and on the brief).

PER CURIAM

After a post-conviction relief (PCR) evidentiary hearing conducted pursuant to our remand, defendant, Martin R. Taccetta, prevailed. He established ineffective assistance of counsel, as a result of which his convictions were vacated, he was released on bail, and a retrial was ordered. Nonetheless he appeals, because a second PCR, filed long after the remand hearing had commenced, was denied. He asserts as separate grounds for the second PCR that the State's proofs were based on perjured testimony, essentially the product of federal, state and local authorities conspiring against him in retaliation for an earlier failed prosecution. He also seeks, as he did in the initial PCR appeal which resulted in the remand, to compel extensive discovery on the conspiracy claim. He further requests the assignment of a different judge to the matter. The State appeals the motion court's award of PCR relief to defendant on the first petition. We affirm, and decline to transfer the matter to another judge.

On August 13, 1993, after a jury trial, defendant was found guilty on Indictment No. SGJ 272-90-1, of count one, second-degree conspiracy to commit racketeering, N.J.S.A. 2C:41-2(b), (c), (d), and N.J.S.A. 2C:5-2; count two, first-degree racketeering, N.J.S.A. 2C:41-2(c), and N.J.S.A. 2C:2-6; and counts five and six, both of which charged second-degree theft by extortion, N.J.S.A. 2C:20-5, and N.J.S.A. 2C:2-6. Defendant was sentenced as a discretionary extended-term offender to life with twenty-five years of parole ineligibility on count two. Count one was merged into count two. On counts five and six, defendant's sentences were concurrent to each other, ten years subject to five years of parole ineligibility. However, these sentences were imposed consecutive to the life sentence. In 1997, we affirmed the convictions on direct appeal and the Supreme Court denied defendant's petition for certification. State v. Taccetta (Taccetta I), 301 N.J. Super. 227, 233 (App. Div.), certif. denied, 152 N.J. 187 (1997).

Defendant then filed the first PCR, which was initially denied without an evidentiary hearing. As a result of the subsequent appeal, we remanded the matter solely as to defendant's claim of ineffective assistance of counsel in the plea bargaining process. State v. Taccetta (Taccetta II), 351 N.J. Super. 196, 198 (App. Div.), certif. denied, 174 N.J. 544 (2002). Protracted evidentiary hearings were conducted pursuant to the remand. On December 7, 2005, the PCR judge found defendant had been ineffectively represented by counsel in plea negotiations, he vacated the convictions and ordered that defendant be retried on the indictment. Defendant was released on bail the following day.

The complex factual scenario which resulted in the indictment is recounted in detail in the direct appeal opinion. Taccetta I, supra, 301 N.J. Super. at 234-40. It was reiterated in the first PCR opinion. State v. Taccetta (Taccetta II), No. A-3983-99 (App. Div. May 7, 2002) (slip op. at 2-3). No purpose would be served by recounting those facts here except to state that the charges against this defendant included murder, of which he was acquitted at trial. The State alleged that the murder and the other crimes were an outgrowth of defendant's involvement with the Lucchese crime family, and a dispute with members of the Bruno-Scarfo family involving illegal slot machines. Only one of defendant's co-defendants was convicted of all counts of the indictment, including the murder count.

Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed.2d 674, 692 (1984). The right to counsel means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed 2d, 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I,