On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-12-3809.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sapp-Peterson.
Defendant, Delphine Green, now known as Lateefah Shabazz, appeals from an April 4, 2006 order denying her fifth petition for post-conviction relief (PCR). We affirm.
Defendant, who was fourteen-years-old in 1982 when the subject offense took place, was tried as an adult. On March 15, 1984, a jury found defendant guilty of felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); and second degree robbery, N.J.S.A. 2C:15-1 (count three). On April 14, 1984, defendant was sentenced on count one to a mandatory minimum term of thirty years in prison, without eligibility for parole, and to a concurrent five-year term on count two. On direct appeal, the conviction and sentence were affirmed. State v. Green, No. A-4457-83T4 (App. Div. October 14, 1986) (slip op. at 1). Thereafter, on June 9, 1987, defendant's petition for certification was denied. State v. Green, 108 N.J. 175 (1987).
Approximately five years later, on August 1, 1992, defendant filed pro se her first PCR petition which she later withdrew, only to raise substantially the same issues in a second PCR petition, filed in February 1998. That petition was denied in January 1999. The denial was affirmed on appeal and on September 26, 2000, the ensuing petition for certification was also denied. State v. Green, 165 N.J. 532 (2000).
On November 19, 2001, more than seventeen years after her conviction, defendant filed her third petition for PCR; it was denied on April 26, 2002 and was followed by a fourth petition in November 2002, which was denied on procedural grounds.
Defendant then moved for reconsideration and when that motion was denied, she again appealed. The Law Division's orders disposing of the petition and motion for reconsideration were affirmed by this court on September 4, 2003, and defendant's petition for certification on that decision was denied on January 29, 2004. State v. Green a/k/a Lateefah Shabazz, 178 N.J. 450 (2004).
Defendant's fifth petition, filed November 15, 2005, resulted in a hearing that was conducted on January 26, 2006, February 16, 2006 and March 23, 2006, before Judge Ned M. Rosenberg. The court heard testimony from defendant's mother, an assistant prosecutor and two attorneys, who represented defendant at trial, after which the court rejected all of defendant's claims in a written opinion dated April 4, 2006.
The court concluded that defendant had failed to establish a basis for the relief sought in her petition, as amended. More specifically, the court determined that defendant failed to prove by a preponderance of credible evidence that trial counsel had failed to inform her of a plea offer. Consequently, defendant's claim of ineffective assistance on that basis was rejected for lack of credible supporting evidence.
Similarly, the court found no merit in defendant's claims that new scientific evidence and evolving standards of societal decency (a) rendered the waiver of jurisdiction in the juvenile court improvident and (b) rendered the mandatory thirty-year sentence constitutionally excessive. The court concluded the scientific evidence was not "newly discovered evidence" and observed that the issues relating to defendant's waiver out of juvenile court had already been considered and affirmed on appeal. To the extent defendant's petition challenged the excessiveness of the sentence, the court found it was not cognizable on a petition for post-conviction relief.
Finally, the court rejected defendant's contention that an erroneous jury instruction on the issue of felony murder constitutes plain error and necessitates a new trial as a result of a retroactive application of our Supreme Court's ruling in State v. Martin, 119 N.J. 2, 34 (1996). In Martin, the Court recognized "that felony murder is a strict-liability offense requiring proof that death was the probable consequence of the commission of the underlying felony." Id. at 27. "The causation requirement of the [New Jersey Code of Criminal Justice] contains two parts, a 'but-for test' under which the defendant's conduct is 'deemed a cause of the event if the event would not have occurred without that conduct' and, when applicable, a culpability assessment." State v. Pelham, 176 N.J. 448, 460 (2003) (quoting Martin, supra, 119 N.J. at 11).
The culpability assessment entails the following considerations:
[w]hen the actual result is of the same character, but occurred in a different manner from that designed or contemplated [or risked], it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result. Although the jury may find that the defendant's conduct was a "but-for" cause of the victim's death . . . it may nevertheless conclude . . . that the death differed in kind from that designed or contemplated [or risked] or that the death was too remote, accidental in its occurrence, or dependent on another's volitional act to justify a murder conviction.
[Id. at 461 (quoting Martin, supra, 119 N.J. at 13).]
The PCR court was of the view that Martin would not apply retroactively, but it explained that, even assuming arguendo that the holding of Martin did apply retroactively, "the evidence upon which defendant was convicted was premised on the trial testimony that she possessed the box cutter and the permissible inference therefrom that she cut the plastic oxygen tubes, directly contributing to the death of Mr. Carter."
On this appeal, defendant makes the following arguments:
POINT I: APPELLANT'S TRIAL WAS FUNDAMENTALLY FLAWED BY A FELONY MURDER JURY INSTRUCTION THAT PERMITTED A CONVICTION FOR CONDUCT WHICH IS NOT REACHED BY THE STATUTES GOVERNING FELONY MURDER.
A. ERRORS IN THE LOWER COURT'S
B. THE CONVICTION IS IRREMEDIABLY
FLAWED FOR THE SAME REASON THAT THE CONVICTION IN MARTIN ...