On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2007
Before Judges Fuentes and Grall.
Defendant Alfred Phelps appeals from the denial of his motion for post-conviction relief (PCR). The crimes were committed in December 1994. Tried to a jury with his co-defendants James Washington and Robert Phelps, defendant was convicted of conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a; attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a; aggravated assault, N.J.S.A. 2C:12-1b(1); possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a. On June 27, 1998, the judge merged defendant's convictions for conspiracy, aggravated assault and possession of a firearm with an unlawful purpose with his conviction for attempted murder. Pursuant to N.J.S.A. 2C:44-3d, the judge imposed an extended term of incarceration for attempted murder, a term of forty years, twenty to be served without possibility of parole. The judge also imposed a concurrent term for possession of a handgun without a permit. We affirmed defendant's conviction and sentence on appeal, and the Supreme Court denied his petition for certification. State v. Phelps, No. A-1037-98T4 (App. Div. Feb. 26, 2001), certif. denied, 169 N.J. 611 (2001). Defendant submitted a petition for post-conviction relief, which the State conceded should be treated as if timely filed.
The judge who presided over defendant's trial considered defendant's petition. The judge denied the petition for reasons stated in a written decision of October 28, 2005.
Defendant subsequently filed a pro se motion for reconsideration. On December 19, 2005, the judge entertained defendant's argument on that motion. Although the judge indicated that he intended to deny the motion, he asked defendant if he wanted an adjournment in order to retain an attorney. Defendant responded, "Yes." The judge, replied: "Okay, I will carry this motion. I will give it a control date . . . of Monday, January 31st. If in fact, I have not heard from an attorney at that point one way or the other - ." Defendant finished the judge's sentence by stating, "Your ruling will stand." The judge clarified his ruling: "I will bring you back up here to find out what's going on. Okay?" The judge repeated, "I'll carry this matter until January 31st." Defendant agreed.
In a letter to defendant dated January 9, 2006, however, the judge wrote:
Please be advised that this [c]court has denied your request for reconsideration of your post conviction relief and will not reconsider this matter.
Should you feel that further legal proceedings are necessary, you may pursue this matter with the New Jersey Superior Court, Appellate Division.
The facts that the jurors could have found to support defendant's convictions are recited in this court's opinion affirming his convictions and sentence. State v. Phelps, supra, slip op. at 21-23. To the extent relevant to the issues raised on this appeal, the facts stated in that opinion and additional facts not addressed therein follow.
DeMarzino, the victim of the crimes, was shot while sitting in his car. Defendant and his co-defendant, Washington, approached his car. Washington shot him approximately nine times. Defendant, who was holding a handgun, attempted to enter the car on the passenger-side, but the door was locked. After the shooting, Robert Phelps, who was also present, urged the others to "come on." DeMarzino knew the men by their nicknames and subsequently identified them.
Elston, who was charged with defendant, defendant's brother Robert Phelps and Washington, was acquitted in a prior trial. Elston saw Washington shoot DeMarzino, and he saw defendant attempt to open the car door. He also saw defendant's brother standing behind him. Although Elston denied any involvement in the shooting or its planning, he heard the co-defendants say that they were going to do it, i.e. he testified that he heard defendant and Washington talking about shooting DeMarzino.
After trial, the co-defendants moved for a new trial on the ground that they had evidence that, while he was confined, Elston had told another prisoner and a corrections officer that defendant and his brother were not involved in the shooting. The trial judge denied the motion for a new trial. On direct appeal, this court affirmed that denial. We concluded: "In light of the strength of the State's case, Elston's statements made to the ...