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State v. Cerato


April 14, 2009


On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 89-06-0127.

Per curiam.


Submitted March 24, 2009

Before Judges Graves and Grall.

Defendant Joseph Cerato appeals from an order dated February 27, 2008, denying his petition for post-conviction relief (PCR). On appeal, defendant claims he was denied effective assistance of counsel and his PCR application should not have been time-barred because his lack of "training or experience with legal matters" constitutes excusable neglect under Rule 3:22(a). We are satisfied that these arguments are clearly without merit, Rule 2:11-3(e)(2), and affirm.

More than eighteen years ago, on October 29, 1990, defendant pled guilty to murder and conspiracy to commit murder. Defendant's girlfriend, Audrey Wilson, was a co-defendant. The victim was Wilson's mother. The sentencing judge noted in defendant's judgment of conviction that he "agreed to kill the mother of his girlfriend with the incentive that he would receive part of the inheritance and insurance money." The court merged defendant's conspiracy conviction, and defendant was sentenced to life in prison with thirty years of parole ineligibility for murder.

Defendant and his girlfriend both gave detailed confessions surrounding the facts and circumstances of the murder to the police. In addition, during his plea hearing, defendant advised the court that he was satisfied with his attorney, he confirmed that he had discussed an intoxication defense under N.J.S.A. 2C:2-8 with his attorney, and he provided an extensive factual basis for the entry of his guilty pleas. The record also confirms that on September 4, 1990, defendant gave notice to the State in accordance with Rule 3:12 that he would "rely upon the defense of evidence of mental disease or defect as provided in N.J.S.A. 2C:4-2." However, in a subsequent report dated September 29, 1990, defendant's expert, James S. Wulach, Ph.D., determined that defendant's mental state at the time of the homicide did not satisfy the criteria for a defense of insanity or diminished capacity, even though defendant reported drinking "over a six-pack of beer and swallowing two tabs of LSD" prior to the murder.

Defendant does not claim that he is innocent. Instead, he contends he would not have pled guilty if his attorney had investigated "all possible defenses and specifically diminished capacity pursuant to N.J.S.A. 2C:4-2." On the other hand, the State argues the record does not support defendant's PCR claim because a diminished capacity defense was investigated by defendant's attorney and rejected by defendant's expert. The State further argues that the detailed and extensive statements made by defendant to the police following his arrest, and in court when he pled guilty, demonstrate that defendant knew exactly what he was doing at the time of the murder because he "recalled everything in intimate detail."

The trial court ruled that defendant's PCR petition was time-barred because the delay in filing the PCR claim was not attributable to either excusable neglect or exceptional circumstances. State v. Goodwin, 173 N.J. 583, 595 (2002). Nonetheless, Judge Conforti considered the matter on its merits, and he determined that defense counsel was not ineffective for relying on the six-page report prepared by defendant's expert---- Dr. Wulach. We agree with Judge Conforti's findings and conclusions and affirm substantially for the reasons he stated.



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