On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 98-05-0650.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Stern and Lyons.
The order of September 19, 2006, denying defendant's petition for post conviction relief (PCR), is affirmed substantially for the reasons expressed by Judge James N. Citta in his oral opinion of July 10, 2007. We add only the following:
In the petition defendant claimed he received:
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR FAILURE TO RAISE ON DIRECT APPEAL INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO IMPEACH WITNESS AFTER SAID WITNESS GAVE TWO DIFFERENT ACCOUNTS OF WHAT TRANSPIRED, IN VIOLATION OF DEFENDANTS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT SEEKS NEW TRIAL BASED ON PLAIN ERROR AND CONSTITUTIONAL VIOLATIONS.
The petition, dated March 8, 2004, was supplemented by counsel's comprehensive brief dated May 1, 2006. In that brief, counsel claimed defendant was deprived of effective counsel both at his trial and on appeal. Specifically, counsel contended:
I. DEFENDANT IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
II. APPELLATE COUNSEL FAILED TO RAISE THE INEFFECTIVENESS OF TRIAL COUNSEL ON A VARIETY OF ISSUES HE COULD HAVE AND SHOULD HAVE RAISED IN ADDITION TO THE ISSUES HE HAD ALREADY RAISED, AND TRIAL COUNSEL WAS INEFFECTIVE AS HE FAILED TO EFFECTIVELY REPRESENT THE DEFENDANT IN THE FIRST INSTANCE.
III. COUNSEL FAILED TO COMMUNICATE WITH THE DEFENDANT AND FAILED TO KEEP HIM ADEQUATELY APPRISED OF THE PROCEEDINGS AND THE LACK OF A PLEA OFFER SO AS TO DENY DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL.
IV. TRIAL COUNSEL FAILED TO ARGUE WHY THE LETTER OF CATHY CARBONE WHICH IS EXCULPATORY OF THE DEFENDANT ...