On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 90-07-3285.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2008
Before Judges Wefing, R. B. Coleman, and Lyons.
Defendant appeals from a trial court order denying his petition for post-conviction relief.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was indicted and tried for conspiracy to commit murder, a crime of the second degree, N.J.S.A. 2C:5-2, 11-3; knowing or purposeful murder, a crime of the first degree, N.J.S.A. 2C:11-3(a)(1); retaliation against an informant, N.J.S.A. 2C:28-5(b), a crime of the fourth degree; possession of a weapon without a permit, N.J.S.A. 2C:39-5(b), a crime of the third degree; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), a crime of the second degree; and tampering with a witness, N.J.S.A. 2C:28-5(a), a crime of the third degree.
The matter was tried as a capital case. The jury eventually convicted defendant of conspiracy to commit murder, murder, unlawful possession of a weapon and possession of a weapon for an unlawful purpose. The jury found defendant not guilty of capital murder and thus not subject to the death penalty. It acquitted defendant of retaliation against a witness and witness tampering. At sentencing, the trial court merged certain convictions, after which it considered that the convictions for murder and possession of a weapon for an unlawful purpose survived for purposes of sentencing. The trial court sentenced defendant to life in prison for murder, and directed that defendant had to serve a minimum of thirty years before he could be considered eligible for parole. In addition, it imposed a consecutive ten-year sentence for the conviction for possession of a weapon for an unlawful purpose. Defendant appealed to this court, and we affirmed defendant's convictions. We noted, however, that the conviction for possession of a weapon for an unlawful purpose should have merged into the conviction for murder. State v. Diaz, 144 N.J. 628, 637 (1996). We, therefore, remanded the matter for entry of a corrected judgment of conviction. Boeglin I, supra. The Supreme Court denied certification. 167 N.J. 86 (2001).
This matter has a protracted procedural history. Defendant's crimes occurred in 1990, and he was convicted in 1992. The petition for post-conviction relief that is before us on this appeal was filed in 2001, some nine years after defendant was convicted and sentenced. We do not find it necessary to set forth in detail all of the procedural steps, and missteps, that occurred between defendant's 1992 conviction and his 2001 filing of this petition. It is sufficient at this juncture simply to note that in Boeglin II, we affirmed defendant's convictions and remanded for entry of a corrected judgment of conviction.
Nor do we find it necessary to set forth in detail the positions advanced by the State and by defendant at trial. Those are recounted in our opinion deciding the merits of defendant's initial appeal, and we incorporate them into this opinion by reference.
Defendant raises the following arguments on appeal:
POINT I EXCUSABLE NEGLECT EXISTS FOR FILING THE INSTANT PETITION FOR POST-CONVICTION RELIEF BEYOND THE FIVE YEAR LIMIT POINT II DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Failure to Object to Prosecutorial Misconduct During Opening and Closing Statements and to the Erroneous Admission of Highly Prejudicial Evidence
i. Misconduct in the Prosecutor's Opening and Closing Remarks
ii. Failure to Object to Inadmissible Hearsay
iii. Failure to Object to Testimony and Remarks Regarding Illegal Tape-Recorded Telephone
B. Failure to Challenge the Admission of Inadmissible Other-Crimes Evidence, to Demand the Sanitization of Extraneous Inflammatory Details of Such Evidence, and to Demand Proper Cautionary Instructions Regarding Such Evidence
C. Failure to Subject Case to Meaningful Adversarial Testing by Failing to Call Witnesses, to Effectively Cross-examine State's Witnesses, to Perform An Adequate ...