On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-20-3134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Graves.
A jury found defendant guilty of murder, in violation of N.J.S.A. 2C:11-3a(1)(2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39- 4a. The trial court sentenced defendant to a forty-year term of imprisonment, with thirty years of parole ineligibility, for murder. The court also imposed a concurrent four-year term of imprisonment for possession of a handgun without a permit. The court merged defendant's conviction for possession of a weapon for an unlawful purpose.
On defendant's direct appeal, we affirmed his convictions and sentence. State v. Cook, No. A-3792-00T4 (Oct. 8, 2002). One of defendant's arguments that we rejected as "clearly without merit" was that the sentence imposed by the trial court was "manifestly excessive and should be reduced." (slip op. at 5). The Supreme Court denied defendant's petition for certification. 175 N.J. 80 (2002).
On January 25, 2006, defendant filed a petition for post-conviction relief. By oral opinion rendered on August 24, 2007, the trial court denied defendant's petition.
On appeal from the denial of his petition, defendant presents the following arguments:
POINT I: THE FACTORS CONSIDERED BY THE TRIAL COURT TO IMPOSE A SENTENCE ABOVE THE STATUTORY MINIMUM ON THIS FIRST OFFENDER VIOLATED DUE PROCESS.
POINT II: THE COURT'S SUA SPONTE AND EX PARTE DECISION TO RETURN THE JUROR TO DELIBERATIONS DENIED APPELLANT DUE PROCESS AND A FAIR TRIAL.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Bernstein's August 24, 2007 oral opinion. Defendant's arguments do not warrant any substantial additional discussion.
R. 2:11-3(e)(2). We only note with respect to defendant's second point that the juror who sought excusal because of child care issues indicated that her fourteen-year-old daughter was with her in the courthouse and could take care of her younger children on a short term basis. Moreover, the trial court did not deny the juror's request for excusal. The court only indicated that it would have to consult with the prosecutor and defense counsel before acting upon the request and that it would do so expeditiously. Under these circumstances, there is no basis for defendant's claim that this juror was coerced into joining in a guilty verdict she otherwise would not have agreed upon because of the court's direction for her to continue participation in jury deliberations while the court consulted with counsel regarding her request for excusal.