On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 98-10-1825.
Before Judges Baime, Fall and Axelrad.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant appeals from a conviction for second degree theft by failure to make required disposition of property (N.J.S.A. 2C:20-9), and from the denial of his motion for a new trial. He asserts: (1) prejudicial evidence concerning his incarceration was improperly admitted, (2) the prosecutor exceeded the bounds of fair comment in his summation, (3) the trial court committed plain error in its instructions, (4) the questions propounded in the verdict sheet deprived him of a fair trial, (5) the jury's verdict was against the weight of the evidence, (6) the trial court ignored his impecuniosity in entering the restitution order, and (7) his motion for a new trial should have been granted because he was denied the effective assistance of counsel. We find no merit in defendant's claims of trial error or in his attack upon the restitution order. R. 2:11-3(e)(2). We nevertheless conclude that defendant presented a prima facie case of ineffective assistance of counsel and is thus entitled to an evidentiary hearing.
Although this is a criminal case, it pertains generally to the prosecution's claim that defendant breached a written agreement to convey residential property to his friend Raymond Waring and Raymond's then girlfriend Carol Collins. At the time of the alleged agreement, the property, located at 18 Pineview Avenue in Keansburg, was owned by defendant, his wife Linda Ann, and his mother Antoinette. According to Carol, it was orally agreed that Raymond would pay Antoinette $15,000. Antoinette would then convey her interest in the property to defendant, who would sell the house to Raymond. Carol testified that she and Raymond gave three checks to Antoinette totaling $15,000, who then deeded the property to defendant. All three checks contained notations indicating that they represented deposits toward the purchase of the property.
On June 22, 1985, defendant and Raymond entered into a written contract which provided that Raymond was to take possession of the property, assume mortgage payments, and pay taxes, utility and other maintenance expenses. Upon payment of the full mortgage balance, the property was to be deeded to Raymond. The agreement, which was drafted by Raymond's attorney and was notarized by a notary public, provided in pertinent part as follows:
WHEREAS, Petrozelli is the owner of certain premises known as Lot 819, Block 36, Keansburg, New Jersey; and
WHEREAS, Waring has and will rent said premises from Petrozelli; and
WHEREAS, Waring will be given the right to acquire the premises from Petrozelli upon terms and conditions set forth hereinafter;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Commencing from the time of the signing of this Agreement, Waring agrees to take possession of the premises known as Lot 819 Block 36, Keansburg and repair and make improvements as he deems fit in connection with the house. Waring accepts and takes the premises "as is" and there are no representations by Petrozelli as to the physical condition of the premises.
2. Petrozelli agrees that title to the premises will be conveyed to Waring or his assigns at any time during the term of this Agreement ...