On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-12-1240.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Collester and C.S. Fisher.
Defendant has appealed the denial of his petition for post-conviction relief, which alleged a deprivation of his constitutional right to the effective assistance of counsel. As a result of the judge's inadequate fact finding as well as the decision's incorporation of extraneous information, which defendant had no opportunity to challenge or rebut, we vacate the order denying post-conviction relief and remand for an evidentiary hearing.
In 1996, defendant was indicted and charged with first-degree robbery, N.J.S.A. 2C:15-1(a), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). A jury found defendant guilty of all these charges at the conclusion of his trial in 1998. At sentencing, the trial judge granted the State's motion for an extended term, and imposed a fifty-four-year prison term, with an eighteen-year period of parole ineligibility, on the robbery conviction. The judge also sentenced defendant to a concurrent five-year prison term on the unlawful possession of a weapon conviction.*fn1 On February 14, 2000, we affirmed the judgment of conviction by way of an unpublished opinion, Docket No. A-1475-98T4, and, on March 2, 2000, we denied defendant's motion for reconsideration. The Supreme Court denied defendant's petition for certification on June 27, 2000. 165 N.J. 137.
Defendant filed a pro se petition for post-conviction relief (PCR) on May 30, 2001, claiming he was denied the effective assistance of counsel guaranteed by the Sixth Amendment. After a considerable delay -- the record indicates counsel was not assigned to represent defendant until late 2005 -- the trial judge heard the argument of counsel on March 3, 2006. Appointed counsel for defendant briefly argued defendant's position that his trial counsel failed to investigate an alibi defense, conceded that some of the issues raised in the pro se petition were "addressed by the Appellate Division" in the direct appeal, and then "submitt[ed]" the balance of defendant's contentions "to the Court's discretion." With this, defendant requested, but was denied, the opportunity to address the court. He, thus, asked to be returned to prison. After defendant was removed from the courtroom, and after hearing argument from the prosecutor, the judge denied defendant's petition without conducting an evidentiary hearing. Except for his discussion of the claim that trial counsel had failed to investigate and pursue an alibi defense, the trial judge briefly expressed his personal view of trial counsel's abilities, concluded that trial counsel's performance in the matter at hand conformed to that standard, and then adopted the State's brief as the balance of his findings of facts.
Defendant appealed the order denying post-conviction relief entered on March 13, 2006. In his brief on appeal, defendant presents the following arguments:
I. THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. DEFENDANT'S TRIAL ATTORNEY FAILED TO OBJECT TO PREJUDICIAL COMMENTS DURING THE STATE'S OPENING STATEMENT.
B. DEFENDANT'S TRIAL ATTORNEY FAILED TO PROPERLY CROSS EXAMINE OFFICER LARRY DEPROSPO.
C. DEFENDANT'S TRIAL ATTORNEY FAILED TO PROPERLY CROSS EXAMINE VICTIM MICHAEL VANSLOOTEN.
D. DEFENDANT'S TRIAL ATTORNEY FAILED TO CALL A CRIME SCENE OFFICER.
E. DEFENDANT'S TRIAL ATTORNEY FAILED TO PROPERLY CROSS EXAMINE ...