On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Before Judges Michels and Stern.
The opinion of the court was delivered by STERN, J.A.D.
Defendant was indicted for three counts of aggravated manslaughter, N.J.S.A. 2C:11-4a (counts one, two and three), and three counts of death by auto, N.J.S.A. 2C:11-5 (counts four, five and six). The victims named in counts four, five and six were, respectively, the same people named in counts one, two and three. Defendant was also charged with fourth degree assault by auto to two other victims, N.J.S.A. 2C:12-1c (counts seven and eight).
At his first trial, defendant was convicted on all counts. The trial Judge merged the death by auto convictions into the convictions for aggravated manslaughter and sentenced defendant to three consecutive twenty-year terms, with ten-year parole-ineligibility periods on each. He also sentenced defendant to concurrent eightee -month terms for the two assault by auto convictions. Defendant's custodial sentence, therefore, aggregated sixty years, with thirty years to be served before parole eligibility. Violent Crimes Compensation Board penalties, aggregating $7,560, were also imposed.
On appeal we reversed the convictions. See State v. Pindale, 249 N.J. Super. 266, 592 A.2d 300 (App. Div. 1991). We concluded that evidence concerning defendant's lack of remorse should not have been presented to the jury and that prosecutorial excesses in summation warranted reversal of the aggravated manslaughter convictions embodied in counts one through three. We also found error in the sentencing and, while we found no error affecting the convictions for the assault by auto, embodied in counts seven and eight, we affirmed those convictions but vacated the sentences thereon. Further, because we concluded that the errors requiring reversal of the aggravated manslaughter convictions did not affect the convictions for the lesser-included offenses of death by auto as embodied in counts four, five and six, we gave the prosecutor a choice between retrying defendant on the first six counts or proceeding directly to sentencing on counts four, five and six. Id. at 289-90.
The prosecutor elected to retry defendant on the first six counts, and the jury returned a guilty verdict on counts one, two and three.*fn1 The trial Judge thereafter sentenced defendant to consecutive twenty-five year terms in the custody of the Commissioner of Corrections for each of the first three counts of the indictment, with a ten-year period of parole ineligibility on each. The Judge reimposed eighteen-month sentences on counts seven and eight, making them concurrent with each other and with the sentences on counts one through three. The Judge also imposed a $150 aggregate Violent Crimes Compensation Board penalty.
Defendant appeals to us and argues:
POINT I THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL.
POINT II DEFENDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER SHOULD BE REVERSED AS BEING AGAINST THE WEIGHT OF THE EVIDENCE.
POINT III THE SENTENCE IMPOSED BY THE COURT BELOW WAS EXCESSIVE AND SHOULD BE SET ASIDE.
POINT IV THE ASSISTANCE OF ASSIGNED DEFENSE COUNSEL WAS INEFFECTIVE AND THEREFORE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS.
Our careful review of the record convinces us that these contentions are clearly without merit and do not warrant written Discussion, R. 2:11-3(e)(2), except as herein stated.
Defendant chose to fire his public defender at the end of the State's case on the grounds of ineffectiveness and disagreement about trial strategy, including counsel's position not to call witnesses who defendant subsequently never called. Defendant could not discharge the public defender as ...