On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Ind. No. 99-06-2310.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Fuentes and Chambers.
Defendant Habeeb Scott, who was convicted of aggravated manslaughter, appeals from the denial of his post-conviction relief application, contending that his trial counsel was ineffective for failing to present certain evidence and arguments at his trial. We affirm, finding that the post-conviction relief application is without merit and was filed out of time.
On April 11, 1999, defendant's girlfriend was found in his apartment with a bullet hole in the center of her forehead. When the police arrived, defendant was in the apartment, his shirt covered in blood. While he initially attempted to hide his involvement with the shooting, he thereafter explained to the police that he was playing with his gun, a Tec-9 sub-machine gun, when it accidentally fired and hit the woman.
Defendant was indicted for first degree murder in violation of N.J.S.A. 2C:11-3(a)(1) to -(2) and for various weapons and drug charges. The case was tried to a jury on the homicide and weapons charges. The jury acquitted defendant of murder but found him guilty of the lesser included offense of aggravated manslaughter. He was also found guilty of unlawful possession of an assault firearm in violation of N.J.S.A. 2C:39-5(f) and unlawful possession of a defaced firearm in violation of N.J.S.A. 2C:39-3(d). Defendant then pled guilty to certain drug charges arising out of this indictment and another indictment. For all of these offenses, defendant received an aggregate sentence of thirty years imprisonment, including within that term, a term of fifteen years under the Graves Act, N.J.S.A. 2C:43-6(c) to -(d). The sentence was subject to the eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition, defendant was sentenced to five years of parole supervision upon release. He was assessed the requisite monetary assessments and penalties, and his driving privileges were suspended for a period of twenty-four months. The judgment of conviction and sentence was entered on June 28, 2001. We affirmed the conviction and sentence in an unpublished written decision. State v. Scott, No. A-396-01T4 (App. Div. Mar. 3, 2003).
In his petition for post-conviction relief dated December 14, 2006, defendant asserted that his trial counsel was ineffective because she did not present testimony and argument to mitigate the evidence of prior bad acts presented by the State. At trial, in its effort to prove the murder charge, namely that defendant had acted purposely and knowingly when he shot the victim, the State presented the testimony of four witnesses who testified that defendant had threatened and harmed the victim in the past. The admissibility of this evidence, as prior bad acts under Rule 404(b), was upheld by this court in defendant's direct appeal of his conviction. In his testimony at trial, defendant denied many of these accusations, although he did admit to arguing with the decedent on some occasions, pushing her in the face during an argument, and on another occasion pouring juice on her and grabbing her by the shoulder.
In the post-conviction relief petition, defendant contended that in order to counter the Rule 404(b) evidence, defense counsel should have presented the testimony of his cousin who had spoken to the victim by telephone the morning of the shooting and who would testify that there was no discord or tension between the victim and the defendant at that time. He also maintained that defense counsel should have canvassed the neighborhood to find neighbors who could testify that defendant and the victim were not fighting on the morning of the shooting. Finally, he asserted in his certification to the trial court that defense counsel should have argued in her summation that he and the decedent had "some minor disputes during the course of our relationship, we were no different than the country as a whole - where the divorce rate for married couples is around fifty percent and the break-up rate for unmarried, dating couples is far higher." Counsel's failure to make such an argument "allowed the jury to get the impression that our relationship was more volatile than the average romantic relationship in this country."
The application was denied on March 16, 2007, and this appeal followed. On appeal defendant contends that:
POINT I TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT WITNESSES TO MITIGATE CONSIDERATION OF PRIOR BAD ACTS BY THE JURY TO ESTABLISH ELEMENTS OF EXTREME INDIFFERENCE TO HUMAN LIFE.
POINT II DEFENDANT HAS MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.
After a careful review of the record and briefs submitted, we find that defendant's arguments are without sufficient merit to warrant discussion in a written opinion and affirm, adding only the following comments. R. 2:11-3(e)(2).
We note that this application is out of time since it was filed more than five years after entry of the judgment and sentence, contrary to Rule 3:22-12(a). While the Rule permits an exception where the delay "was due to defendant's excusable neglect," no such showing has been made here. See R. 3:22-12(a). Further, the Rule may be relaxed to prevent injustice. See R. 1:1-2 (permitting relaxation of a rule "if adherence to it would result in an injustice"). In determining whether to relax the Rule, the court must "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim." State v. ...