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State v. Essner

February 2, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALLEN ESSNER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 97-11-1245.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 14, 2009

Before Judges A. A. Rodríguez and Lyons.

Defendant Allen Essner appeals from an order denying his post-conviction relief (PCR) application. Defendant was convicted of first-degree murder, pursuant to N.J.S.A. 2C:11-3, and second-degree possession of a weapon for an unlawful purpose, pursuant to N.J.S.A. 2C:39-4(a), after a trial by jury. We affirmed his conviction on appeal on November 22, 2002.*fn1

State v. Essner, No. A-2498-99T4 (App. Div. Nov. 22, 2002). The Supreme Court denied certification on February 11, 2003. State v. Essner, 175 N.J. 547 (2003).

Defendant now raises for our consideration on appeal the following arguments:

POINT I

ESSNER WAS DENIED A FAIR TRIAL BECAUSE THE JURY CHARGE WITH RESPECT TO THE EVIDENCE CONCERNING THE TERRORISTIC THREATS AND RESTRAINING ORDER WAS CONFUSING AND INADEQUATE TO PROTECT ESSNER'S RIGHTS.

POINT II

ESSNER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BECAUSE HE WAS DENIED THE ASSISTANCE OF EFFECTIVE COUNSEL WITH RESPECT TO HIS POST-CONVICTION RELIEF PETITION. (Not Raised Below).

In defendant's first point, he argues that the jury charge with respect to certain evidence concerning terroristic threats and a domestic violence restraining order was confusing and inadequate to protect his rights and denied him a fair trial. We disagree.

We note, first of all, that pursuant to Rule 3:22-4, the claim should be procedurally barred. The argument could have reasonably been raised in the prior direct appeal. However, even if we were to consider defendant's substantive argument, we would find it to be without merit. The argument is factually and logically flawed.

At the trial, the victim's wife, who was also defendant's paramour, testified that she sought a domestic violence restraining order against defendant for terroristic threats he allegedly made. The prosecutor asked her if she had filed criminal charges of terroristic threats against defendant. She replied, "I believe so, yes." There was an objection. The objection was sustained and the ...


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