June 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEON SINGLETARY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 3202-81 and 3203-81.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2007
Before Judges Parker and Messano.
Defendant Leon Singletary appeals from an order entered January 30, 2006 denying his petition for post-conviction relief (PCR).
Defendant is incarcerated on two separate indictments. On January 12, 1983, defendant was sentenced on Indictment 3202-81 to a life term subject to twenty-five years parole ineligibility for armed robbery, N.J.S.A. 2C:15-1; a consecutive five-year term, subject to two and a half years parole ineligibility for assault, N.J.S.A. 2C:12-1b(2); a consecutive ten-year term subject to five years parole ineligibility for possession of a handgun with intent to use it unlawfully, N.J.S.A. 2C:39-4a; and a concurrent five-year term for hindering apprehension, N.J.S.A. 2C:29-3b.
On March 25, 1983, defendant was sentenced on Indictment 3203-81 to a term of life, subject to twenty-five years parole ineligibility for murder, N.J.S.A. 2C:11-3; and a concurrent ten-year term for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The sentence on Indictment 3203-81 was to be served consecutive to the sentence on Indictment 3202-81.
We consolidated the appeals on both indictments and affirmed defendant's convictions and sentences in an unpublished opinion filed May 14, 1986, Docket No. A-3466-82T4. The Supreme Court denied certification on October 6, 1986, State v. Singletary, 105 N.J. 552 (1986). On December 2, 1997, the United States District Court for the District of New Jersey denied defendant's writ of habeas corpus in an unpublished letter opinion (Civ. Action No. 97-2330 (NHP)).
On January 30, 2001, eighteen years after the judgments of conviction were entered, defendant filed his petition for post-conviction relief. In a certification signed on June 15, 2004, defendant attested that between the years of 1983 and 1987, he was depressed and spoke with several psychologists, psychiatrists and social workers who recommended psychotropic medication which he refused.
In an unpublished opinion denying defendant's PCR petition, the trial court determined that defendant "failed to show that the 18-year gap between his conviction and the filing of his post[-]conviction relief application were the product of excusable neglect."
Notwithstanding the procedural bar, the judge addressed the merits of the application and determined that defendant "failed to show that trial counsel was ineffective for failing to file a motion to reveal the identity of the confidential informant." The judge noted that "[d]uring the [m]otion to [s]uppress hearing held on September 17, 1982, trial counsel vigorously cross-examined Detective Spera in regard to the identity of his confidential informant." The court further noted that trial counsel used the absence of an identity for the confidential informant strategically during the trial.
The court further found that petitioner's claim that trial counsel failed to request a jury charge on cross-racial identification lacked merit because that jury charge did not become viable until State v. Cromedy, 158 N.J. 112 (1999), was decided seventeen years after defendant was tried. Moreover, the court noted that a Cromedy cross-racial identification charge should only be given when identification is an issue in the case. Identification was not an issue here.
Defendant further argued that trial counsel was ineffective "for failing to move for a speedy trial" on an indictment that was subsequently dismissed. The trial court noted that "the [p]petitioner cannot petition for relief in a case that was disposed of in his favor."
The trial judge also addressed defendant's claim that appellate counsel was ineffective because he failed to raise the issues in which trial counsel was ineffective. Indeed, the court found that since there was no deficiency in trial counsel's performance, appellate counsel's performance was sufficient.
With respect to the sentencing claims, the court noted that defendant was not entitled to sentencing considerations under Blakeley, Natale and Abdullah*fn1 because they were all decided more than twenty years after defendant was sentenced.
In this appeal, defendant argues:
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL
We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Thomas R. Vena in his written opinion rendered on January 27, 2006.