On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-02-0120.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Sapp-Peterson and Messano.
Defendant Mary Gaston appeals from the November 14, 2005, order denying her petition for post-conviction relief (PCR). She raises three issues for our consideration.
DEFENDANT WAS DENIED HER FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL DUE TO HER TRIAL COUNSEL'S FAILURE TO REMOVE THE SLEEPING JUROR. (Not Raised Below).
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE SHE WAS DENIED HER FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HER TRIAL AND APPELLATE COUNSELS' FAILURE TO CHALLENGE THE TRIAL COURT'S INAPPROPRIATE INSTRUCTIONS TO THE JURY.
DUE TO THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DEFENDANT DID NOT MAKE A KNOWING AND VOLUNTARY WAIVER OF HER STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO TESTIFY ON HER OWN BEHALF.
After consideration of these contentions in light of the record and applicable legal standards, we affirm.
Following a jury trial, defendant was found guilty of the lesser-included offense of aggravated assault in the second degree, in violation of N.J.S.A. 2C:12-1b(1); robbery in the first degree, in violation of N.J.S.A. 2C:15-1; and possession of a weapon for an unlawful purpose in the third degree, in violation of N.J.S.A. 2C:39-4d. After the appropriate merger of offenses, she was sentenced to an aggregate term of twelve years imprisonment with eighty-five percent of the term to be served before parole eligibility.
Defendant's direct appeal was heard together with that of her co-defendant Marselis Gaston. We affirmed both defendants' convictions and sentences. State v. Gaston, Nos. A-4992-01 and A-6560-01 (App. Div. October 29, 2003). Defendant's petition for certification to the Supreme Court was denied on January 22, 2004. 178 N.J. 454 (2004). Defendant filed a pro se PCR petition and brief on June 15, 2004, which was supplemented by her attorney's memorandum of law.*fn1 The PCR hearing was conducted before the ...