On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-04-496.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 19, 2007
Before Judges Axelrad, Payne and Sapp-Peterson.
Defendant Andre Lewis appeals from the June 28, 2006 order denying his petition for post-conviction relief (PCR) in which he alleged ineffective assistance of trial counsel. We affirm.
Following a jury trial, defendant was convicted of first-degree purposeful and knowing murder and a variety of weapons offenses in connection with the shooting death of his exfiancée. There was testimony by the victim's son, who was a passenger in her automobile, that defendant shot the victim in the face through the windshield at point-blank range shortly after she broke off their engagement. Defendant confessed to the crime. At trial, his counsel conceded that defendant had shot and killed the victim but unsuccessfully asserted as a primary defense through psychiatric testimony that defendant suffered from mental illness at the time of the shooting. The State presented expert testimony to the contrary.
The court sentenced defendant to a custodial term of thirty years with a thirty-year parole disqualifier, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder count, and imposed concurrent terms on the weapons counts and a consecutive term of eighteen months with an eighteen-month parole disqualifier under the Graves Act for the fourth-degree aggravated assault conviction. We affirmed defendant's conviction on appeal but remanded for amendment of the judgment of conviction to eliminate the NERA application, i.e., the five-year period of parole supervision. State v. Lewis, No. A-1889- 00T4 (App. Div. October 7, 2002). On November 26, 2002, the Supreme Court denied defendant's petition for certification. State v. Lewis, 175 N.J. 80 (2002).
This PCR petition ensued and was denied by Judge Barisonek on June 28, 2006, following oral argument but without an evidentiary hearing. Defendant presented two arguments in support of his PCR petition: (1) that trial counsel, Donna Wrenn, Assistant Deputy Public Defender for Union Region, advised him not to testify, which constituted ineffective assistance of counsel because it precluded him from the right to testify and because she failed to extract critical information from defendant's psychiatric expert to link defendant's mental issues to his mental state on the date of the murder; and (2) that ineffective assistance of trial counsel resulted from the failure to object to the standard jury charge on the diminished capacity defense.
Defendant's claims were rejected by the trial court. Pertinent to this appeal, Judge Barisonek expressly referenced the following colloquy he had with defendant at trial respecting his determination not to testify on his own behalf*fn1
THE COURT: Oh, Miss Wrenn, I also need --we might as well deal with this. Mr. Lewis, couple of things. Obviously you have not testified in this case, and I assume you discussed the issue as to whether you wanted to testify with your attorney. Is that accurate, sir?
THE COURT: It's your desire not to be a witness for the defense?
THE COURT: You have a second choice to make. My clerk will give to your attorney a form. I can either tell the jury nothing about your desire, meaning I'd say nothing about your desire to refrain from testifying, or I will tell the jury almost verbatim what is on that form. I'm going to ask you to go over that with your attorney, and then before I give the charge I must ...