On appeal from Superior Court of New Jersey, Law Division, Essex County, No. I-99-07-2592.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and LeWinn.
Defendant appeals from the trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Indictment No. 1999-07-2592 charged defendant with second-degree burglary, N.J.S.A. 2C:18-2; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); two counts of unlawful possession of a weapon, one in the fourth degree and one in the third degree, N.J.S.A. 2C:39-5(d), -5(b); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and one count of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7; and one count of second-degree eluding, N.J.S.A. 2C:29-2(b).
Defendant was tried to a jury. During trial, the court dismissed one count each of second-degree assault and second-degree possession of a weapon for an unlawful purpose and dismissed the sole receiving stolen property count. The jury found defendant guilty of burglary, kidnapping, terroristic threats, fourth-degree unlawful possession of a weapon, third-degree possession of that weapon for an unlawful purpose, and eluding. They found defendant not guilty of the balance of the charges.
The trial court sentenced defendant to fifteen years in prison for kidnapping, subject to the 85% parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. All other terms were made concurrent. Defendant appealed his convictions and sentence and we affirmed in an unpublished opinion. State v. Esperance, No. A-1048-00 (App. Div. Oct. 25, 2001). The Supreme Court denied defendant's petition for certification. State v. Esperance, 171 N.J. 337 (2002).
Defendant thereafter filed a petition for post-conviction relief. Counsel assigned to represent defendant prepared a brief on his behalf and orally argued that defendant was entitled to relief because his trial attorney had been ineffective. The trial court denied defendant's petition and this appeal followed. On appeal, defendant raises the following arguments for our consideration:
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE JURY CHARGE ON KIDNAPPING WHICH INCLUDED A THEORY FOR THE CRIME WHICH WAS NOT PART OF THE INDICTMENT.
DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ...